Franklin v Commissioner of Police

[2018] NSWSC 310

Supreme Court

New South Wales

Medium Neutral Citation:

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

Hearing dates:

2 November 2017, 10 November 2017

Date of orders:

14 March 2018

Decision date:

14 March 2018

Jurisdiction:

Common Law

Before:

Johnson J

Decision:

1. The Plaintiff is granted leave to rely upon the Amended Summons attached to the Notice of Motion filed on 3 August 2017.

 

2. The Plaintiff is to file and serve an Amended Summons in accordance with order (1) on or before 19 March 2018.

 

3. The Plaintiff is refused leave to appeal under s.53(3)(b) Crimes (Appeal and Review) Act 2001.

 

4. The Amended Summons is dismissed.

 5. The Plaintiff is to have until 4.00 pm on 21 March 2018 to furnish by email to Johnson J’s Associate, and serve upon the Defendants, a written submission (not exceeding four pages) as to why costs should not follow the event in this case.

Catchwords:

CRIMINAL LAW - Plaintiff charged with domestic violence related assault – Plaintiff issues subpoenas – Magistrate made rulings on subpoenas adverse to Plaintiff – legitimate forensic purpose and public interest immunity – application for leave to appeal under s.53(3)(b) Crimes (Appeal and Review) Act 2001 – confined to grounds which involve question of law alone – requirement for leave to appeal from interlocutory orders – reflects need to minimise fragmentation of process of criminal justice – factors relevant to grant of leave – error of law not demonstrated – no proper basis for grant of leave to appeal – leave to appeal refused

Legislation Cited:

Crimes (Appeal and Review) Act 2001
Crimes Act 1900
Criminal Appeal Act 1912
Criminal Procedure Act 1986
Evidence Act 1995
Local Court Rules 2009
Supreme Court Rules 1970
Uniform Civil Procedure Rules 2005

Cases Cited:

Attorney General (NSW) v Kaddour and Turkmani [2001] NSWCCA 456
Attorney General (NSW) v Lipton (2012) 224 A Crim R 177; [2012] NSWCCA 156
Attorney General (NSW) v Stuart (1994) 34 NSWLR 667
Attorney General for NSW v Chidgey (2008) 182 A Crim R 536; [2008] NSWCCA 65
Carlton v R (2008) 189 A Crim R 332; [2008] NSWCCA 244
Carroll v Attorney General for NSW (1993) 70 A Crim R 162
Commissioner of Police v Tuxford [2002] NSWCA 139
Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Limited (2006) 67 NSWLR 402; [2006] NSWSC 343
Feeney v NSW Police [2017] NSWSC 190
Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532; [2008] HCA 4
Jaffarie v Director-General of Security (2014) 226 FCR 505; [2014] FCAFC 102
Liristis v Gadelrabb [2009] NSWSC 441
Mackintosh v Commissioner of Police (NSW) and Ors [2010] NSWSC 1064
NAR v PPC1 (2013) 224 A Crim R 535; [2013] NSWCCA 25
Perish v R [2015] NSWCCA 237
PPC v Williams (2013) 238 A Crim R 25; [2013] NSWCCA 286
Principal Registrar of Supreme Court v Tastan (1994) 75 A Crim R 498
R v Francis (2004) 145 A Crim R 233; [2004] NSWCCA 85
R v Meissner (1994) 76 A Crim R 81
R v PL (2009) 199 A Crim R 199; [2009] NSWCCA 256
R v PL [2012] NSWCCA 31
R v Qaumi and Ors (No. 11) [2016] NSWSC 252
R v Saleam (1989) 16 NSWLR 14
R v Saleam [1999] NSWCCA 86
Ryan v State of Victoria [2015] VSCA 353
State of New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60
Williams v The Queen (1986) 166 CLR 278; [1986] HCA 88

Texts Cited:

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Category:

Principal judgment

Parties:

Craig Andrew Franklin (Plaintiff)
Commissioner of Police (First Defendant)
Senior Constable Karen Brodie (Second Defendant)

Representation:

Counsel:
Mr CA Franklin (Plaintiff in person)
Mr R Bhalla (First and Second Defendants)

  Solicitors:
Norton Rose Fullbright Australia (formerly Henry Davis York) (First and Second Defendants)

File Number(s):

2017/130695

Publication restriction:

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Judgment

1. JOHNSON J: The Plaintiff, Craig Andrew Franklin, has brought proceedings against the First Defendant, the Commissioner of Police, and the Second Defendant, Senior Constable Karen Brodie, seeking to challenge decisions of the Local Court with respect to subpoenas which the Plaintiff had issued in connection with criminal proceedings brought against him.

2. By Court Attendance Notice, the Plaintiff is charged that on 2 September 2016 at Mount Victoria, he did assault Emma Franklin, an offence under s.61 Crimes Act 1900. It is said that the Plaintiff assaulted his wife at their home in Mount Victoria in an incident of alleged domestic violence. The Second Defendant is the officer-in-charge of the investigation.

3. In advance of the defended hearing of the assault charge, the Plaintiff caused a number of subpoenas to issue directed to the Commissioner of Police and the Royal North Shore Hospital (“RNSH”).

4. On 5 April 2017 and 18 and 19 July 2017, a Magistrate sitting at the Katoomba Local Court made a number of decisions concerning the subpoenas with which the Plaintiff is dissatisfied. The Plaintiff appeared for himself before the Local Court.

Proceedings in this Court

5. By Summons filed on 2 May 2017, the Plaintiff sought to challenge decisions of the Magistrate made on 5 April 2017 with respect to subpoenas directed to the Commissioner of Police and the RNSH. That Summons did not adequately identify the question of law which was said to be involved or the error or errors of law which were alleged.

6. The RNSH (or any relevant health entity) was not joined (and is still not joined) as a party to these proceedings.

7. Orders were made by the Registrar for the Plaintiff to serve an Amended Summons on the Defendants by 5 June 2017.

8. The Plaintiff came before the Magistrate once again at the Katoomba Local Court on 18 and 19 July 2017 at which time further subpoenas issued by him were the subject of rulings.

9. By Notice of Motion filed on 3 August 2017, the Plaintiff sought leave to file an Amended Summons in this Court which challenged aspects of the decisions made concerning subpoenas on 5 April 2017 and 18 and 19 July 2017.

The Hearing Before this Court

10. On 2 and 10 November 2017, the Plaintiff’s Notice of Motion proceeded to hearing before me. The Plaintiff (who has a legal background) appeared for himself at the hearing. Mr Bhalla of counsel appeared for the First and Second Defendants.

11. A substantial volume of documentary material was placed before the Court at the hearing of the Notice of Motion.

12. Affidavits of the Plaintiff sworn 9 May 2017 and 3 August 2017 were read for the Plaintiff and the affidavit of Maria Panos sworn 23 October 2017 was relied upon by the Defendants. Paragraphs 3 to 6 of the Plaintiff’s affidavit sworn 3 August 2017 were rejected as the documents there referred to were not before the Magistrate (T4-5, 38-39, 2 November 2017).

13. For the purpose of this application, the principal documents to be considered are the subpoenas in relation to which challenge is made and the transcript of the proceedings before the Local Court on 5 April 2017 and 18 and 19 July 2017 (Exhibit 1) which include the reasons of the Magistrate for the decisions now challenged. Documents placed before the Magistrate during submissions concerning the subpoenas may also be considered (Exhibit A; T6, 2 November 2017), but with the clear understanding that this Court is exercising a very limited appellate jurisdiction.

Limited Avenue of Appeal to Supreme Court under s.53(3)(b) Crimes (Appeal and Review) Act 2001

14. The Plaintiff is a party to summary criminal proceedings before the Local Court.

15. Statutory provisions with respect to subpoenas in Local Court criminal proceedings may be found in ss.220-232 Criminal Procedure Act 1986 and Rules 6.1-6.9 Local Court Rules 2009.

16. A person against whom 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 upon a ground that involves a question of law alone, and only by leave of the Supreme Court: s.53(3)(b) Crimes (Appeal and Review) Act 2001.

17. The decisions of the Magistrate with respect to the subpoenas are interlocutory in nature: Mackintosh v Commissioner of Police (NSW) and Ors [2010] NSWSC 1064 at [3]; Feeney v NSW Police [2017] NSWSC 190 at [1].

18. I note that s.53(3)(b) is confined to an “interlocutory order”. The provision is narrower than s.5F Criminal Appeal Act 1912 which provides for an appeal against an “interlocutory judgment or order”. It is not necessary to consider the scope of an “interlocutory order” in this case: cf Attorney General (NSW) v Stuart (1994) 34 NSWLR 667 at 672-673; Attorney General (NSW) v Lipton (2012) 224 A Crim R 177; [2012] NSWCCA 156 at 184 [25]. The Defendants accepted that the decisions of the Magistrate constituted “interlocutory orders” for the purpose of s.53(3)(b). Accordingly, I will proceed upon the basis that interlocutory orders are under challenge in these proceedings.

19. 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) 166 CLR 278; [1986] HCA 88 at 287.

20. A question concerning the application of correct legal principle to the facts of a particular case is a question of mixed fact and law: R v PL (2009) 199 A Crim R 199; [2009] NSWCCA 256 at 205 [26]. A “question of law alone” does not extend to an error of mixed fact and law: Carlton v R (2008) 189 A Crim R 332; [2008] NSWCCA 244 at 335 [10]; R v PL [2012] NSWCCA 31 at [37]-[39].

21. Even if error of law is demonstrated, the case must still be an appropriate one for leave to appeal to be granted under s.53(3)(b). The requirement for leave to appeal with respect to an interlocutory order reflects the need to minimise the fragmentation of the process of criminal justice: 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].

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 an error of principle which is apt to cause an irregularity or injustice: NAR v PPC1 at 539-540 [17]; PPC v Williams at 35 [52].

23. The Court may determine an application for leave to appeal by dismissing the application or by granting leave to appeal: s.54(1) Crimes (Appeal and Review) Act 2001. If the Court grants leave to appeal, the Court may determine an appeal against an order referred to in s.53(3)(b) by setting aside the order and making such other order as it thinks just or by dismissing the appeal: s.55(3) Crimes (Appeal and Review) Act 2001.

Matters of Practice and Procedure in the Local Court

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].

The Defendants’ Position

26. In summary, the Defendants:

1. neither consented to nor opposed the grant of leave with respect to the Plaintiff’s Notice of Motion to file his Amended Summons;

2. submitted that the Plaintiff ought not be granted leave to appeal from any interlocutory orders made by the Magistrate on 5 April 2017 upon the basis that the Amended Summons evinced no error of law amenable to review under s.53(3)(b) and that the case was not an appropriate one for leave to be granted;

3. submitted that the Plaintiff ought not be granted leave to appeal from any interlocutory orders of the Magistrate on 18 and 19 July 2017, once again upon the basis that the Amended Summons evinced no error of law amenable to review under s.53(3)(b) and the case was not an appropriate one for leave to be granted;

4. submitted that, if leave to file the Amended Summons is granted, the Amended Summons ought be dismissed with costs.

27. Given that the matter was fully argued, I am satisfied that the Plaintiff should be granted leave to rely upon the Amended Summons. I will determine the application for leave to appeal by reference to the grounds contained in the Amended Summons.

The Subpoenas Directed to the Commissioner of Police

28. On 9 March 2017, the Plaintiff filed a subpoena for production seeking documents from the Commissioner of Police (Subpoena No. 2080) which came before the Magistrate on 5 April 2017. Subpoena 2080 sought production of the following items (certain identifiers have been omitted):

“1.    Copy of all records held by NSW police in this matter.

2.    Copy of records held by NSW police of person known by the following names born [xxx]:

(a)    Emma Jane Franklin

(b)    Emma Jane Burke

(c)    Emma Jane Byrnes

(d)    Emma Jane Burns

3.    Copy of all information about attendance and calls for attendance at [xxx] Mount Victoria NSW between period 1 July 2012 and 31 March 2016.

4.    Copy of all records, made, produced or held by NSW police regarding investigation of allegations made by Emma Jane Franklin in respect to the Application for Apprehended Domestic Violence Order made by Constable Christopher New of Blue Mountains Local Area Command and filed at Katoomba Local Court.

5.    Copy of all records, made, produced or held by NSW police regarding investigation into matters arising out [of] complaints to NSW police by Craig Franklin, and Desley Franklin that were delegated to Superintendent Jobson of Blue Mountains Local Area Command, including but not limited to witness statements taken from Mr. and Mrs. [xxx] of [xxx] Mount Victoria.

6.    Copy of official police note books entries of officers:

(a)    Detective Senior Constable Scott Burton with respect to matters involving Emma Jane Franklin.

(b)    Constable Christopher New for all attendances at property [xxx] Mount Victoria at any time, including but not limited to, 2 September 2016, 14 November 2016.

(c)    Constable Hunt for all attendances at property [xxx] Mount Victoria at any time, including but not limited to 2 September 2016.

(d)    Senior Constable David Graham for all attendances at property [xxx], Mount Victoria.

(e)    Senior Constable Erick Denis for all attendances at property [xxx] Street Mount Victoria.

7.    Copy of all communications, directions and instruction sent by or received by Superintendent Jobson to officers within the Blue Mountains Local Area Command concerning the detection, encouragement or prosecution of Domestic Violence allegations, including but not limited to the management of officers:

(a)    Senior Constable Karen Brodie

(b)    Senior Constable Lisa Banks

(c)    Constable Christopher New.”

29. On 5 April 2017, the Magistrate heard submissions with respect to an objection to production upon the basis that this subpoena was too wide (T8, 5 April 2017).

30. During the course of submissions, her Honour pointed (understandably) to the breadth of the subpoena and suggested that the Plaintiff “redraft the subpoena” directed to the Commissioner of Police to narrow it in various respects to which the Plaintiff responded “I will narrow the search” and, a little later, “I shall do that” (T8-9, 5 April 2017).

31. On 5 April 2017, the Magistrate also made rulings on objections with respect to the subpoena directed to RNSH, to which I will return.

32. On 3 July 2017, the Plaintiff caused to be issued two further subpoenas for production directed to the Commissioner of Police (Subpoenas 5465 and 5466).

33. Subpoena 5465 was in the following terms (certain identifiers have been omitted):

“Subpoena 5465

1.    All police reports and COPS records held by NSW police for the female person know as Antonia Ravesi [xxx] and currently working as Program Manager at "Dianella Cottage" Alcohol and Drug Centre, Waratah Street, Katoomba NSW.

2.    All police report and COPS records held by NSW police for the female person know as Angela Corkeron [xxx] and currently working as a Dance teacher [xxx].”

34. Ms Ravesi and Ms Corkeron are to be called as prosecution witnesses at the hearing of the assault charge against the Plaintiff. From documents tendered by the Plaintiff (Exhibit A), it appears that Ms Ravesi will give evidence of complaint made to her by Ms Franklin concerning the alleged assault. Ms Ravesi is a Program Manager at Dianella Cottage, a women’s non-residential drug and alcohol treatment service which specialises in working with trauma. It appears that Ms Corkeron (who knows Ms Franklin from dance teaching) will also give evidence of complaint made to her by Ms Franklin concerning the alleged assault.

35. Subpoena 5466 should be understood as a revised version of Subpoena 2080. Subpoena 5466 sought production of the following items (certain identifiers have been omitted):

“Subpoena 5466

1.    All police reports and COPS records held by NSW police for the female person known by the following names and having a date of birth of [xxx]:

(a)    Emma Jane Franklin but only between 1 September 2009 and 3 July 2017.

(b)    Emma Jane Burke but only between 1 January 2000 and 31 August 2009.

(c)    Emma Jane Byrnes but only between 7 April 2001 and 13 April 2003.

2.    All records relating to the investigation, apprehension, arrest, interrogation, charging and prosecution of Craig Franklin date of birth [xxx] by Senior Constable Karen Brodie, with respect to charge reference number H61527160.

3.    All records relating to the investigation, interrogation and prosecution of Craig Franklin date of birth [xxx] by Constable Christopher New, with respect to Application for Apprehended Domestic Violence Order police application number 65318186, filed at Katoomba Local Court on 14 October 2016.

4.    Copy of official police note books entries of officers:

(a)    Constable Christopher New for all attendances at property [xxx] Mount Victoria at any time, including but not limited to, 2 September 2016, 14 November 2016.

(b)    Constable Hunt for attendance at property [xxx] Mount Victoria on 2 September 2016.

(c)    Senior Constable David Graham for attendance at property [xxx] Mount Victoria on 14 November 2016.

(d)    Constable Michelle Prestage for attendance at property [xxx] Mount Victoria on 7 November 2016.”

36. Various documents were produced to the Plaintiff by the Second Defendant with respect to these subpoenas in advance of the hearing on 18 and 19 July 2017. On those days, the Magistrate heard submissions and made rulings granting access to some documents and refusing access to other documents requested under the subpoenas.

Challenges Arising from the Hearing on 5 April 2017

37. In the Amended Summons, the Plaintiff asserted that her Honour erred in law on 5 April 2017 upon the following grounds:

1. failing to inspect documents, the subject of objection to the subpoena for production served on the Commissioner of Police, before ruling on the objection because the Defendants refused to provide them to the Court;

2. failing to grant access to documents sought under the subpoenas issued for a legitimate forensic purpose and in which it was on the cards that documents would materially assist the presentation of facts in issue in the proceedings and the credit of a prosecution witness with respect to witness statements signed by that witness;

3. not pressed;

4. ignoring a relevant fact in issue being the mental illness of Ms Franklin;

1. applying an irrelevant personal opinion about alcoholism in circumstances where an expert opinion would be required to assist the Court.

38. Given the nature of the application to this Court, I propose to deal with these grounds briefly.

39. With respect to the subpoena directed to the RNSH, documents were produced to the Court and written objection was apparently taken by the RNSH on the grounds of absence of legitimate forensic purpose (T4-5, 5 April 2017). It is notable that the Police Prosecutor was not called upon to address on this subpoena. The Plaintiff was given an opportunity to outline the suggested legitimate forensic purpose and he made submissions in that respect (T5ff, 5 April 2017). The presiding Magistrate upheld the objection (T7-8, 5 April 2017).

40. I have noted earlier that the RNSH (or any relevant health entity) is not a party to these proceedings. The Plaintiff urged the Court, in his submissions in reply on 10 November 2017 (T52-53), to make an order under Part 51B Rule 10(4) Supreme Court Rules 1970 joining the RNSH as a party to the proceedings. If the Plaintiff wished to challenge the Magistrate’s ruling with respect to the RNSH subpoena, he should have joined that entity as a party at an early point in the proceedings. He did not do so. It is not appropriate for the Court to direct joinder at the very end of the hearing before this Court. In any event, I detect no error of law in the approach of the Magistrate to the subpoena directed to that entity, nor has any basis been demonstrated for a grant of leave concerning that subpoena.

41. I turn to the subpoena directed to the Commissioner of Police (Subpoena 2080).

42. With respect to Ground (a), I agree with the submission for the Defendants that the ground is misconceived. A number of documents had been provided to the Plaintiff in response to the subpoena. There was an objection taken upon the basis that the subpoena was too wide. The Magistrate agreed except with respect to documents produced in relation to the criminal history of the Plaintiff’s wife with access to those documents being granted (T8, 5 April 2017). The Magistrate also granted access to other documents (T9-10, 5 April 2017).

43. As noted earlier, the Magistrate referred (correctly) to the breadth of the subpoena and invited the Plaintiff to redraft it with the Plaintiff agreeing to “narrow the search” (T9, 5 April 2017). Her Honour extended the return date with respect to subpoenas directed to other persons to 27 June 2017 and informed the Plaintiff that he could reissue the subpoena directly to the Commissioner of Police with the same return date (T11, T17, 5 April 2017).

44. With respect to Grounds (b), (d) and (e), these grounds appear to relate to documents in the possession of the RNSH. I have noted earlier that that entity is not a party to these proceedings and, in any event, I detect no error in the Magistrate’s approach to that subpoena or a proper basis for a grant of leave.

45. To the extent that these grounds are said to relate to Subpoena 2080, I do not accept that submission. In any event, the Plaintiff elected to reissue a further subpoena directed to the Commissioner of Police which was expressed in narrower terms.

46. I refuse the Plaintiff leave to appeal with respect to the grounds which relate to the Local Court hearing on 5 April 2017. No error of law has been identified and, in any event, no proper basis has been identified for a grant of leave to the Plaintiff to rely upon any of these grounds.

Challenges Arising from the Hearing on 18 and 19 July 2017

47. On the application of the Plaintiff, Subpoena 5466 was issued in the Balmain Local Court on 3 July 2017 directed to the Commissioner of Police (relating to Ms Franklin and police officers). On the same day, Subpoena 5465 issued directed to the Commissioner of Police (relating to Ms Ravesi and Ms Corkeron).

48. On 11 July 2017, the Plaintiff was informed that objection was to be taken by the Defendants upon the grounds of absence of legitimate forensic purpose and public interest immunity.

49. Mr Bhalla, of counsel, appeared for the First Defendant on 18 and 19 July 2017. He provided to the Magistrate a thorough and helpful written submission dated 17 July 2017 which was served on the Plaintiff (Annexure K, affidavit of Plaintiff sworn 3 August 2017). That written submission contained a summary of principles with respect to, amongst other things, legitimate forensic purpose and public interest immunity.

50. In support of the claim for public interest immunity, open and confidential affidavits of Acting Assistant Commissioner Mark Jones sworn 17 July 2017 were provided to the Magistrate. The open affidavit of Acting Assistant Commissioner Jones was served on the Plaintiff (Annexure J, affidavit of Plaintiff sworn 3 August 2017).

51. The Plaintiff relied upon the following grounds of appeal with respect to decisions made on 18 and 19 July 2017:

“(i)   Not pressed.

(ii)   Failure to physically inspect documents about Ms. Ravesi prior to deciding on either Public Interest Immunity or legitimate forensic purpose and did not do so because the Defendants did not provide them to her.

(iii)   Misconstrued legitimate forensic purpose in circumstances where the Plaintiff has a legitimate interest in the criminal history and allegations of domestic violence made by or about Mrs. Franklin, Ms. Ravesi and Ms. Corkeron in circumstances where bias, collusion or credit of each prosecution witness forms a basis of cross examination at trial.

(iv)   Misdirected herself with respect to legitimate forensic purpose when refusing access to a document sought on the basis that such document would be inadmissible at trial.

(v)   Applied a procedure repugnant to the law of New South Wales, but for the most rare and extraordinary situations, to exclude a defendant from hearing the basis of a claim he must answer and thereby denied him a fair trial.

(vi)   Misapplied the balancing requirements of a judicial officer hearing a claim to Public Interest Immunity by:

(a)   failing to appropriately balance the countervailing issues of maintaining public confidence in the judicial process in circumstances where an ordinary matter proceeds by way of secret evidence,

(b)   failing to appropriately balance the countervailing issue of public interest in defendants being able to properly prepare their case at trial, by refusing access to documents at an interlocutory hearing when she is unaware of all the matters the defendant would run at trial and which a defendant could ordinarily address the Court about,

(c)   failing to appropriately balance the countervailing issue of public confidence in Judicial Officers not ordinarily proceed by way of unchallenged secret police affidavits in circumstances where Police have refused to conduct a proper investigation of a matter leading to charges before the local court and there is evidence before the Court that the Police know that the charge is without merit.

(d)   failing to appropriately balance the countervailing issue of public interest that Police cannot ordinarily claim Public Interest Immunity to conceal their misconduct by arguing against release of material facts and witnesses whom in the normal course of an investigation, and but for the rarest and most extraordinary situations, would be disclosed to the defence.”

52. At the hearing in this Court, the Plaintiff made submissions with respect to each of the proposed grounds of appeal which he pressed. For the purpose of determining the present application, it is not necessary to recite the arguments which were put orally and in writing on behalf of the Plaintiff and the Defendants. It is appropriate to move directly to consider the proposed grounds of appeal.

53. At the outset, I note that the hearing proceeded over two days (with interruptions as other matters were interposed). The hearing was fluid with discussions on 18 July 2017 to be understood upon the basis that the Magistrate then examined documents overnight (no doubt, in conjunction with Mr Bhalla’s written submission). Her Honour said at the commencement of proceedings on 19 July 2017 (T1, 19 July 2017):

“HER HONOUR: Thank you and good morning. In the matter of Franklin concerning the documents subpoenaed. I went through the volumes last night. There would appear to me to be some documents within those - I'll just call it the disputed bundle - that would have legitimate forensic purpose. I cannot see why there would be public interest immunity. I just wanted to give you the document so you can tell me what you think.

BHALLA: Yes. Thank your Honour.

HER HONOUR: I have taken those out. Some of these other documents are really nothing, couldn't be remotely seen to have anything to do with this matter and I think would fall within sort of a fishing expedition, I'd agree with that. However, what is important that I think Mr Franklin does have access to some of these documents because I can see exactly why they would be most helpful to him in the running of his case.

BHALLA: I'm grateful to your Honour for having taken the time to look through them.

HER HONOUR: So I apologise for you having to come back again today.

BHALLA: No, that's quite all right.

HER HONOUR: But sometimes these things do happen and we get quite busy when it's hoped that we'd be able to fit matters in. I can just hand this down to you Mr Bhalla.

BHALLA: Thank you your Honour.”

54. The criticisms made by the Plaintiff of aspects of the proceedings on 18 July 2017 should be understood in this light. The discussions on 18 July 2017 should be considered as a preamble to the ruling made at the commencement of the proceedings on the second day, 19 July 2017.

55. The Magistrate applied the correct test of legitimate forensic purpose. The onus lay upon the Plaintiff to identify expressly and precisely the legitimate forensic purpose for which access to the documents was sought: R v Saleam (1989) 16 NSWLR 14 at 18; Principal Registrar of Supreme Court v Tastan (1994) 75 A Crim R 498 at 504; Commissioner of Police v Tuxford [2002] NSWCA 139 at [22]. It was for the Plaintiff to show not merely that documents might be relevant. The documents sought must be relevant in the sense that they will assist the Plaintiff’s case: Carroll v Attorney General for NSW (1993) 70 A Crim R 162 at 181-182; Attorney General for NSW v Chidgey (2008) 182 A Crim R 536; [2008] NSWCCA 65 at 550-551 [59]-[63]. In addition, it was for the Plaintiff to establish that it was “on the cards” that the documents sought would materially assist his case: R v Saleam [1999] NSWCCA 86 at [11]; Attorney General for NSW v Chidgey at 550-551 [58]-[60]; Perish v R [2015] NSWCCA 237 at [56]-[57].

56. With respect to Ground (iii), the Plaintiff indicated to the Magistrate that he wished to challenge the credit of Ms Franklin, Ms Ravesi and Ms Corkeron in cross-examination (T5-6, 18 July 2017).

57. It should be kept in mind that Ms Ravesi and Ms Corkeron are to be witnesses as to complaint by Ms Franklin (see [34] above). The Magistrate was alive to this factor.

58. The Magistrate examined the documents which had been produced (T10, T12, 18 July 2017). The only record held by police with respect to Ms Ravesi was in relation to her involvement in a motor vehicle accident which was not caught by the forensic purpose identified by the Plaintiff (T5, 18 July 2017).

59. Documents were produced and shown to the Magistrate with respect to Ms Corkeron. Having examined the documents, her Honour determined that it was not on the cards that those documents would assist the Plaintiff’s defence.

60. Mr Franklin argued (in support of Ground (iii)) that the Magistrate had erred by ruling that seeking documents for the purpose of cross-examination of a witness on credit did not constitute a legitimate forensic purpose. It is clear that the production of documents intended to be used solely to impeach the credit of a witness may be a legitimate forensic purpose: Liristis v Gadelrabb [2009] NSWSC 441 at [5]; Mackintosh v Commissioner of Police (NSW) at [16]-[17]. However, I am not persuaded that the decision of the Magistrate, when fairly read, reveals error of that type.

61. The passages to which the Court was taken in the Local Court transcript (T6-7, T10-11, 18 July 2017) reflect the Magistrate’s view that the Plaintiff had not made good the “on the cards” test with respect to issues concerning Ms Ravesi and Ms Corkeron. Her Honour was not saying that production of documents relating solely to credit could not constitute a legitimate forensic purpose. Her Honour was applying the correct legal principles (set out at [55] above) to the circumstances of this case before rejecting the Plaintiff’s submission. No error of law is demonstrated in this respect.

62. With respect to Ground (ii) (concerning legitimate forensic purpose), the Magistrate heard the Plaintiff on 18 July 2017 on these matters and made a final ruling on 19 July 2017 as indicated earlier (at [53]). No error of law has been demonstrated in accordance with this ground, let alone a proper basis for the Court granting the Plaintiff leave to appeal.

63. The Plaintiff contended (in support of Ground (iv)), that the Magistrate had ruled that documents need not be produced if they would not be admissible in evidence at the final hearing. Once again, it is not in doubt that a legitimate forensic purpose may arise with respect to a document even if the document itself would be inadmissible in proceedings: R v Saleam (1989) at 22. I am not persuaded, however, that a fair reading of the Magistrate’s rulings demonstrates that such an error occurred in this case.

64. The only document in respect of which the Magistrate made any comment about inadmissibility was a “Crime Stoppers” report, which was the subject of a claim for public interest immunity by the First Defendant. The Magistrate read the document and upheld the claim of public interest immunity with respect to it (T10, 19 July 2017). It is not correct, as asserted in Ground (iv), that the Magistrate made this ruling by reference to legitimate forensic purpose. Having heard the public interest immunity claim in closed court, the Magistrate ruled on the claim in open court in the following way (T10, 19 July 2017):

“HER HONOUR: All right thank you , in relation to the matter I've heard from Mr Bhalla in relation to the submissions which are in support of the claim for immunity on the basis of public interest and I've also had regard to the document itself. There's - you may have recalled yesterday I mentioned that the information was a report made to Crime Stoppers.

The concern is that the function of Crime Stoppers is that it's a - there to protect information that is passed on by the community. It goes to the very heart of that open flow of information and the concern would be that if access were granted to information that was provided to them, this would therefore essentially cause a dry up of the flow of information which would not be generally in the public interests. I have read the document that is the subject of the public interest immunity claim. It is not one that would be admissible in Court, in any event. It is not one that would ably assist the defence or the prosecution in the proceedings. It is a document therefore that is of no value whatsoever in the proceedings that are before the court concerning Mr Franklin. And the charge of common assault that's alleged to have occurred.

Accordingly when balancing the public interests considering it does involve an institution of the State by way of the Police Service, it's quite clear that the disclosure of it would do more to interfere with the processes given the nature of the Crime Stoppers Programme then it would assist anyone involved in the case and in the absence of that obvious usefulness to use the words in the Criminal Court of Appeal in R v Francis, in the absence of any obvious usefulness of the material to the applicant in his defence, it would seem that the injury that could be done to the processes that are sought to be protected would outweigh any use or benefit of which there is zero. ACCORDINGLY I UPHOLD THE PUBLIC INTEREST IMMUNITY CLAIM.”

65. It has not been demonstrated that the Magistrate erred in law in this respect nor has any basis been demonstrated for a grant of leave to argue this ground.

66. There is no foundation for a grant of leave to allow Ground (ii) to go forward with respect to public interest immunity.

67. With respect to Grounds (v) and (vi) concerning public interest immunity, the Magistrate accepted a submission for the First Defendant that the application should proceed in closed court (T8-10, 19 July 2017). The Court was closed for some 22 minutes, a transcript of which is not available. Upon resumption in open court, the Magistrate gave her decision (see [64] above). Her Honour’s judgment was expressed in general terms in a manner which maintained confidentiality of the material which was the subject of the claim: R v Francis (2004) 145 A Crim R 233; [2004] NSWCCA 85 at 237 [31]; Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532; [2008] HCA 4 at 596 [185].

68. In accordance with usual practice, the confidential material in support of the claim for public interest immunity was not made available to the Plaintiff: R v Meissner (1994) 76 A Crim R 81 at 84-85. However, the Plaintiff had the benefit of the open affidavit of Acting Assistant Commissioner Jones and Mr Bhalla’s written submissions which addressed the public interest immunity claim at paragraphs 21-58.

69. The Plaintiff cannot know what occurred in his absence with respect to consideration of this claim. What is clear, however, is that the Magistrate inspected the document that was the subject of the claim for public interest immunity as it was annexed to the confidential affidavit that her Honour considered (T2, 18 July 2017). Having read the confidential affidavit, her Honour found its contents to be persuasive (T8, 19 July 2017). Her Honour then ruled on the matter in open court in the presence of the Plaintiff (see [64] above).

70. Ground (v) complains about the procedure utilised by the Magistrate in hearing the public interest immunity claim. The Plaintiff contended in this Court that the approach adopted by the Magistrate was contrary to law.

71. The approach adopted by the Magistrate with respect to the hearing of the public interest claim in closed court was both available and appropriate and utilised the procedure referred to by the Court of Criminal Appeal in R v Francis at 237 [21] (see also R v Qaumi and Ors (No. 11) [2016] NSWSC 252 at [11]). The Court was closed and all persons left the courtroom with the exception of the Magistrate, court staff and the Commissioner’s representatives so as to permit a franker discussion of the issues raised by the First Defendant’s confidential evidence.

72. Generally speaking, if it is possible to consider a claim of public interest immunity without closing the court, then that is a preferable course. The open justice principle should be restricted only as far as is necessary: Jaffarie v Director-General of Security (2014) 226 FCR 505; [2014] FCAFC 102 at 514-515 [27]. That said, it is necessary that oral argument made in open court in support of a claim of public interest immunity not itself disclose confidential material.

73. Section 130 Evidence Act 1995 applied to the public interest immunity claim by virtue of s.131A of that Act which applies s.130, with necessary modifications, to preliminary proceedings involving disclosure requirements such as subpoenas. A corollary of a court’s ability to receive confidential evidence is that the court can also receive confidential submissions orally or in writing in accordance with its ability to “inform itself in any way it thinks fit” for the purpose of s.130(3) of the Act: Attorney General (NSW) v Kaddour and Turkmani [2001] NSWCCA 456 at [20].

74. No error of law has been identified in this respect, nor has any proper basis been demonstrated for allowing the Plaintiff leave to advance Ground (v).

65. Ground (vi)(a)-(d) involves various contentions with respect to the Magistrate’s determination of the claim for public interest immunity.

66. The ruling of the Magistrate with respect to the public interest immunity claim has been set out earlier (at [64]).

67. In approaching this ground, I keep in mind what was said (at [24]-[25] above) concerning an appeal from an ex tempore judgment on a matter of practice and procedure in the Local Court. By the time the Magistrate ruled on the public interest immunity claim on 19 July 2017, the Plaintiff had been given ample opportunity to identify the aspects which he sought to be taken into account on his proposed use of documents if access was granted. Her Honour utilised accepted procedures for determination of the public interest immunity claim involving receipt of confidential evidence and the making of submissions in closed court.

68. Mr Bhalla noted that the Magistrate had said (shortly before the closed court session) that s.130 Evidence Act 1995 did not apply to the public interest immunity claim (T8, 19 July 2017). I accept that this was a mistake on the part of the Magistrate which no doubt arose from her reading of R v Francis at 236-237 [16], a case decided before the enactment of s.131A Evidence Act 1995. However, it should not be taken that her Honour maintained this approach during the closed court session given the written submissions of counsel which referred to s.130 in the context of the public interest immunity claim (paragraph 22ff). In any event, Courts have said that there is no material difference between s.130 and relevant common law principles: State of New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60 at [42]ff; Ryan v State of Victoria [2015] VSCA 353 at [58]ff.

69. The Plaintiff has not demonstrated that the Magistrate fell into legal error in her approach to resolution of the public interest immunity claim.

Conclusion

80. Despite the limited avenue of appeal to this Court, I provided the Plaintiff with ample opportunity at the hearing on 2 and 10 November 2017 to advance arguments in support of his claim for relief. I have considered those arguments in this judgment, perhaps in greater detail than is called for by the limited statutory avenue of appeal which is available. One reason for taking this approach was to resolve what appeared to be a heavily litigated issue by the Plaintiff at the interlocutory level ahead of the summary hearing in the Local Court. It is appropriate that the way be cleared for the hearing and determination of the charge against him.

81. No error of law has been demonstrated with respect to the decisions under challenge in this Court. In any event, no proper basis has been demonstrated for a grant of leave to appeal to the Plaintiff with respect to the Magistrate’s decisions on the subpoena issues. No error of principle has been demonstrated, let alone one which is apt to cause any irregularity or injustice (see [22] above).

82. In the event that the Amended Summons was dismissed, the Defendants sought an order for costs against the Plaintiff. On the face of it, the usual rule should apply and costs should follow the event: Rule 42.1 Uniform Civil Procedure Rules 2005. However, the Court indicated at the conclusion of the hearing that the parties would be given an opportunity to make submissions as to costs. I will allow the Plaintiff seven days from today to provide a short written submission (not exceeding four pages) as to why costs should not follow the event in this case. If necessary, I will allow the Defendants time to reply to any submission from the Plaintiff concerning costs. I will determine the costs issue on the papers without the need for a further hearing.

83. I make the following orders:

1. I grant the Plaintiff leave to rely upon the Amended Summons attached to the Notice of Motion filed on 3 August 2017;

2. the Plaintiff is to file and serve an Amended Summons in accordance with order (a) on or before 19 March 2018;

3. the Plaintiff is refused leave to appeal under s.53(3)(b) Crimes (Appeal and Review) Act 2001;

4. the Amended Summons is dismissed;

5. the Plaintiff is to have until 4.00 pm on 21 March 2018 to furnish by email to my Associate, and serve upon the Defendants, a written submission (not exceeding four pages) as to why costs should not follow the event in this case.

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Decision last updated: 14 March 2018