Lambrou v Smith
[2019] VSC 254
•17 April 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2018 02948
| EMMANUEL GEORGE LAMBROU | Plaintiff |
| v | |
| MICHELLE KATHLEEN SMITH, OF VICTORIA POLICE | First Defendant |
| and | |
| MAGISTRATES COURT OF VICTORIA | Second Defendant |
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JUDGE: | CAMERON J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 1 April 2019 |
DATE OF JUDGMENT: | 17 April 2019 |
CASE MAY BE CITED AS: | Lambrou v Smith & anor |
MEDIUM NEUTRAL CITATION: | [2019] VSC 254 |
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JUDICIAL REVIEW – Application to issue a witness summons for production of documents in criminal proceeding – handwritten statements of complainant and other witnesses – Documents required for forensic testing – Whether there exists a legitimate forensic purpose for testing documents – Whether there exists a reasonable possibility that testing documents may assist accused’s defence – Magistrates’ Court Act 1989 ss 43, 44 considered - Alister v R (1984) 154 CLR 404; R v Saleam (1989) 16 NSWLR 14; Craig v South Australia (1995) 184 CLR 163; R v Mokbel (Ruling No 1) [2005] VSC 410; Ragg v Magistrates’ Court of Victoria (2008) 18 VR 300; Commissioner of AFP v Magistrates’ Court of Victoria [2011] VSC 3 referred to
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr E G Lambrou, in person | - |
| For the Defendant | Mr G Barr | Office of Public Prosecutions |
| For the second defendant | No appearance | - |
HER HONOUR:
What is this case about?
This case concerns an application by the plaintiff, Mr Emmanuel Lambrou, for judicial review of a magistrate’s decision. The decision concerned the production of documents which Mr Lambrou says are relevant to his defence to criminal charges laid against him.
The documents in question are original handwritten statements of the complainant and his children. Mr Lambrou asks that the documents be released to him for the purpose of forensic testing to determine whether they were fraudulently obtained by Victoria Police.
Background
Mr Lambrou stands charged with unlawful assault and making a threat to kill following an altercation with his neighbour, the complainant, which took place on 3 January 2016. Mr Lambrou was charged on 21 November 2016, at which time a preliminary brief was compiled by the informant, the first defendant, and served upon him. The preliminary brief included copies of:
(a) a handwritten statement of the complainant on Victoria Police Form 502, which omitted the last page containing the date and jurat;
(b) typed, signed and sworn statements of the complainant dated 4 May 2016 and 4 August 2016; and
(c) typed, signed and sworn statements of each of the complainant’s three children, dated 8 November 2016.
Following several adjournments the matter was listed for hearing before the Magistrates’ Court on 22 October 2018. On that day Mr Lambrou elected to have the charges against him transferred to the committal stream of the County Court and the matter was listed for a filing hearing on 23 October 2018. At that time the conduct of the prosecution passed from the Prosecutions Division of Victoria Police to the Office of Public Prosecutions (‘OPP’).
The matter was next listed for a committal mention on 18 December 2018. In preparation for that hearing a hand-up brief was prepared and served by the OPP on 12 November 2018. The hand-up brief included, in addition to those documents provided in the preliminary brief:
(a) a handwritten statement of the complainant dated 3 January 2016 and witnessed by the first defendant, this was the same statement previously provided but now included the date and jurat on the final page;
(b) a typed, signed and sworn statement of the complainant dated 25 May 2017; and
(c) handwritten statements signed by each of the complainant’s three children, dated 4 January 2016.
According to the first defendant, the written statements of the complainant’s children had been provided to the first defendant the day following the altercation but had never been formally taken or acknowledged before a police officer. The first defendant says that the complainant’s children attended Flemington police station on 8 November 2016 where fresh, typed, statements were taken. Those typed statements were included in the preliminary brief.
Mr Lambrou believes that the handwritten statements of the complainant and each of his children were fraudulently obtained and wishes to subject them to forensic testing.
On 14 November 2018 Mr Lambrou filed and served a summons upon the first defendant pursuant to s 43 of the Magistrates’ Court Act 1989 (Vic) (the ‘Act’), requesting that Victoria Police provide him with, ‘original documents signed with writing implement i.e. ink pen, ball point pen etc which can be forensically tested.’ Mr Lambrou claimed that access to the original documents would allow him to have them forensically tested to prove that the documents provided to him in the hand-up brief were false, and were not written on the dates given on each respective document. The summons was listed for return on 21 November 2018.
The proceedings below
Return of Mr Lambrou’s summons was heard before Deputy Chief Magistrate Holzer on 21 November 2018. There is dispute between the parties as to what was actually decided by the learned Magistrate at that hearing. Mr Lambrou says that Magistrate Holzer observed, in the course of the hearing, that he was entitled to the original documents he sought. The defendant says that no such observation was made and that, in any event, production was not ordered.
The learned Magistrate’s orders reflect a concern whether a forensic test could be conducted in a controlled environment in order to maintain the integrity of the documents. Magistrate Holzer adjourned the proceedings to 30 November 2018, with orders in the following terms:
Direct that enquiries be made to ascertain whether a supervised/controlled process can be considered as to any forensic analysis of the allegedly relevant documents.
I pause, at this point, to observe that regardless of anything that was said in the course of the hearing before Magistrate Holzer based on audio recordings, no order as to Mr Lambrou’s entitlement to the documents was made. In any event, it is critical to note that the order of Magistrate Holzer is not the subject of Mr Lambrou’s present application. I do observe, however, that having listened to the audio tape of the hearing before Magistrate Holzer, it does appear that Mr Lambrou’s application was granted subject to the establishment of an appropriate protocol.
The matter returned to the Magistrates’ Court on 30 November 2018, before Magistrate Reynolds. Mr Lambrou submits, and I agree, that it appears that the Honourable Magistrate was unaware of the details of previous proceedings Mr Lambrou maintained his position with respect his entitlement to the documents based upon their allegedly fraudulent nature and the relevance to his defence. Mr Lambrou also complained that the procedural requirements of s 44(1) of the Act had not been complied with, as the documents had not been produced to court by Victoria Police or the OPP. The prosecution resisted Mr Lambrou’s application on the basis that the two-stage test at common law for the production of documents was not satisfied.
Magistrate Reynolds did not grant Mr Lambrou’s application, giving brief oral reasons. The learned Magistrate did not consider that there was any merit in Mr Lambrou’s procedural objection, and observed that:
The grounds put by Mr Lambrou for seeking the original documents, the original statements in my concluded view appear to be nothing more than mere speculation and that is something that can’t be countenanced or in support of the production of documents pursuant to a subpoena. I indeed view that Mr Lambrou [has] by the issue of the subpoena embarked on a fishing expedition and the subpoena will be set aside.
At the hearing before me, submissions were made in relation to the adequacy of the reasons given by Magistrate Reynolds. As will become apparent, there is no necessity for me to make any observations in relation to this.
Claims made & relief sought
In his Originating Motion for Judicial Review Mr Lambrou seeks review of the decision of Magistrate Reynolds on the basis that:
(a) the application was not heard in accordance with s 44(1) of the Act insofar as the documents sought were not lodged with the Registrar and were not on the court file;
(b) Magistrate Reynolds did not apply the proper two-stage test in determining whether to allow the subpoena; and
(c) for those reasons, he was denied natural justice.
Mr Lambrou seeks the following relief:
(a) an order in the nature of certiorari quashing the order of Magistrate Reynolds; and
(b) an order in the nature of mandamus directing the Magistrate to deal with the matter according to law and, in the alternative, directing that the Magistrate order that the documents be released for forensic testing.
The first defendant opposes the orders sought by Mr Lambrou on the basis that he has failed to identify any grounds upon which relief may be granted.
Legal principles
Jurisdiction of this Court
Given the nature of the first defendant’s submissions, it is necessary first to say something briefly about the jurisdiction of this Court.
It is trite to observe that this Court’s jurisdiction on an application for judicial review is only enlivened when one of the established grounds to challenge the decision of a lower court or tribunal is established.[1] It is not within this Court’s jurisdiction on an application for judicial review to conduct a re-hearing of the case below on the merits. Established grounds of review include jurisdictional error, error of law on the face of the record, fraud, or a failure to observe procedural fairness. Here, Mr Lambrou submits that Magistrate Reynolds fell into jurisdictional error or otherwise erred in law.
[1]Craig v South Australia (1995) 184 CLR 163, 175-6 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).
Jurisdictional error
Jurisdictional error exists when a court or tribunal ‘mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist.’[2] It is not sufficient for a party seeking review of a decision to simply assert that there was an error, that error must go to the decision maker’s jurisdiction. In my opinion, the learned Magistrate could not be said to have fallen into error in relation to his jurisdiction to hear and determine the application before him. I say this because he undoubtedly had the power to hear and determine the matter before him and did so.
[2]Craig v South Australia (1995) 184 CLR 163, 177 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).
Error of law on the face of the record
An error of law must be established by reference to the record of proceedings before the lower court. Section 10 of the Administrative Law Act 1978 (Vic) provides that the record includes the reasons of the inferior court, whether oral or in writing. Additional material may be included by implication in the reasons given, or where it is necessary to have regard to other material to understand those reasons.[3] I will consider each of the errors of law alleged by Mr Lambrou below.
[3]See O’Connor v County Court of Victoria & Anor [2014] VSC 295, [30] (Kaye J).
Magistrates’ Court Act s 44
Section 44 of the Act provides:
44 Production before date for attendance
(1) Unless the Court or the registrar issuing the summons otherwise directs, a summons to produce documents or things or a summons to give evidence and produce documents or things permits the person to whom the summons is directed, instead of producing the document or thing at the hearing, to produce it, together with a copy of the summons, to the appropriate registrar not later than 2 days before the first day on which production is required.
(2) If a document or thing is produced to the appropriate registrar under subsection (1), he or she must—
(a) if requested to do so, give a receipt to the person producing the document or thing; and
(b) produce the document or thing as the Court directs.
(3) The production of a document or thing to the appropriate registrar under subsection (1) in answer to a summons to give evidence and produce documents or things does not remove the requirement on the person to whom the summons is directed to attend for the purpose of giving evidence.
Mr Lambrou says that the requirements of s 44(1) are mandatory and, in proceeding without the documents having been lodged with the court, Magistrate Reynolds acted beyond power.
On a plain and ordinary reading of s 44 of the Act, it is not mandated that documents the subject of a summons to produce documents be produced to the appropriate registrar not later than two days prior to the required production date.
That avenue merely provides an alternative means of production to producing documents in Court.
It is not contested that:
(i)The relevant documents were neither produced to the appropriate registrar or, indeed, to the Court in advance of the hearing before the Honourable Magistrate;
(ii)An application opposing the summons to produce documents was on foot before the Honourable Magistrate, but remained to be ruled upon.
Contrary to Mr Lambrou’s submission, in circumstances where an application to set aside an application to produce documents is before a Court, a failure to produce documents to the Court in accordance with s 44 does not, in my view, constitute an error of law on behalf of the Honourable Magistrate.
The conduct of the Office of Public Prosecutions in not producing documents to the Court in the normal manner where the production of documents is contested may very well be the subject of criticism by a Court. Indeed, in certain circumstances, conduct of this nature may very well carry costs consequences. But, in my opinion, as I have observed, this conduct does not translate into an error of law by the Honourable Magistrate in dealing with the matter before him.
Fraud
There is no basis whatsoever, on the evidence, to consider that issues of fraud could infect the decision of the Honourable Magistrate and it is not agitated by Mr Lambrou.
Failure to observe procedural fairness
It is asserted by Mr Lambrou that he has been denied procedural fairness and natural justice on the basis of his first and second grounds of appeal.
Whilst I do not accept that Mr Lambrou’s first ground of appeal (relating to s 44(1) of the Act) founds this claim, I do accept, for the reasons set out below, that he was denied natural justice by virtue of the Honourable Justice failed to properly apply the two stage test.
The test for release of documents to the defendant in criminal proceedings
I do not understand there to be any dispute between the parties as to the relevant test to be applied when determining whether to release documents pursuant to s 43 of the Act, or at common law. Both parties accept that the relevant test involves two questions:
(a) First, has the defendant established that there exists a legitimate forensic purpose for the production of documents?; and
(b) Second, has the defendant established that the documents will materially assist their defence?[4]
[4]See, for example, Alister v R (1984) 154 CLR 404, 414 (Gibbs CJ); R v Saleam (1989) 16 NSWLR 14, 18C-E (Hunt J); R v Mokbel (Ruling No 1) [2005] VSC 410, [33]-[42] (Gillard J); Ragg v Magistrates’ Court of Victoria (2008) 18 VR 300, 317 [84]-[89] (Bell J); Commissioner of AFP v Magistrates’ Court of Victoria [2011] VSC 3, [28] (Forrest J).
On the face of the judgment of Magistrate Reynolds it does not appear that his Honour considered and applied that test.
The first question looks to eliminate summonses which serve no purpose at all. In Ragg v Magistrates’ Court of Victoria, Justice Bell described the enquiry as follows:
A summons in a criminal proceeding cannot be used by the defence to go on a fishing expedition. A party to whom such a summons is issued may object to its validity on the ground that it “is oppressive … or that there is no legitimate forensic purpose revealed” by its terms. The defence must have a proper basis for seeking production of documents, and cannot issue a summons for the abstract purpose of seeing whether or not they exist or may be useful.
It is necessary to identify the test to be applied for determining whether the summons has been issued for a legitimate forensic purpose on the one hand, or to engage in an illegitimate fishing expedition on the other. In determining that question, I would start from the point set by Gillard J in R v Mokbel (Ruling No 1): “This is a criminal proceeding, and it is necessary that the accused person has every opportunity … to examine and test the Crown case.” That starting point is the one most consistent with the obligation of the court to ensure the fair trial of the accused, by which the court gives effect to the principle of international human rights that there should be equality of arms between the prosecution and the defence.[5]
[5](2008) 18 VR 300, 321 [86]-[87] (internal citations omitted).
The second stage has been described by Gibbs CJ of the High Court of Australia as asking whether it is ‘on the cards’ that the documents will materially assist the defendant’s defence.[6] In Ragg, Justice Bell observed that that phrase may have outlived its usefulness and instead suggested that the threshold might be better articulated by a ‘reasonable possibility’ test[7]. That is, is there a reasonable possibility that the documents might assist the defendant’s defence? That test properly balances the right of the accused to a fair trial, with the interests of not placing undue burden upon prosecutorial agencies. As Justice Bell put it, the test ‘is a low threshold, but it is a threshold’.[8]
[6]Alister v R (1984) 154 CLR 404, 414.
[7](2008) 18 VR 300, [92]-[96], citing Roads and Traffic Authority of New South Wales v Conolly (2003) 57 NSWLR 310, 315 [7] (Adams J); Felice v County Court of Victoria [2006] VSC 12, [52] (Osborn J); Director of Public Prosecutions v Selway (2007) 16 VR 508, 514 [10] (Cummins J).
[8](2008) 18 VR 300, 324 [96].
In my opinion, his Honour erred in refusing Mr Lambrou’s application for the release of original statements, under controlled and supervised conditions.
I have reached this conclusion for the following reasons:
(i)It is known to all parties that these documents exist and their contents. Accordingly, this matter does not resemble the usual profile of a ‘fishing expedition’ where a party is uncertain whether further documents exist at all, let alone whether, if unearthed, those documents assist their case;
(ii)There is little doubt that, if a forensic examination of the documents did indeed establish that they were forgeries, or otherwise reconstructed, it would, in my opinion, materially assist Mr Lambrou’s case. Accordingly, I consider that there is no doubt that it is on the cards that the examination of the original statements sought will (if proven to be forgeries) materially assist Mr Lambrou’s case. For this reason, there is a legitimate forensic purpose in the production and examination of the original documents for examination;
(iii)Under appropriate Court supervised conditions, there ought be no risk to the integrity of the original documents such that no party will be at risk of disadvantage;
(iv)In the normal course, in the interests of justice, a party ought be entitled to examine original documents and, in my opinion, test their veracity;
(v)The relevant witnesses, if this matter proceeds, may give evidence and be subject to cross-examination. I do not consider this to be an answer to this application. In the event that forensic analysis reveals a particular outcome, the veracity of witness evidence at a hearing may very well be impugned.
Given my observations and my comments in paragraphs [27] and [28] above, it is unnecessary for me to say anything further in relation to the question of whether the Honourable Magistrate erred by virtue of the fact that documents were not produced to that Court by the first defendant pursuant to s 44 of the Act.
Decision
Based on my reasons and observations above, I consider that the Honourable Magistrate erred in dismissing the summons for the production of documents on the basis that his Honour did not apply the proper two stage test in determining whether to allow it.
Accordingly, I make the following orders:
(i)The order of the Honourable Magistrate Reynolds is set aside;
(ii)Mr Lambrou’s summons for production of documents is remitted to the Magistrates’ Court for further hearing and determination.
I will hear the parties on the form of orders and the question of costs.
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