McKechnie v Evans (Production application - conclusion)

[2024] VSC 689

IN THE SUPREME COURT OF VICTORIA Unrestricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2021 00045

ANDRE MCKECHNIE	Appellant
v
DETECTIVE PETER DAVID EVANS	Respondent

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JUDGE:	Gray J
WHERE HELD:	Melbourne
DATE OF HEARING:	Last written submission: 21 June 2024
DATE OF JUDGMENT:	8 November 2024
CASE MAY BE CITED AS:	McKechnie v Evans (Production application — conclusion)
MEDIUM NEUTRAL CITATION:	[2024] VSC 689

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PRACTICE AND PROCEDURE — Power of Court to order production of documents in an appeal on a question of law from ‘final order’ of the Magistrates’ Court — Grant of leave to appeal out of time — Forensic purpose of production — Identification of related question of law raised by the appeal — Criminal Procedure Act 2009 s 272.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Self-represented	N/A
For the Respondent	Mr G Buchhorn	Office of Public Prosecutions

HIS HONOUR:

Introduction

1. On 31 October 2024, I published reasons to the parties on a preliminary issue relating to Mr McKechnie’s application for production of two categories of documents:[1]

1) A complete list of files and all their technical data (including but not limited to: access, modified, creation dates and times, file sizes, user association, permissions, complete paths from partition root, partition details) for the files that were included in the list of files available to the trial judge. (provided in searchable digital format).

2) A duplication of all data from the computer (which was a primary subject of the proceeding from which this appeal is brought) (including both hard-drives) other than the data described within the list above. The duplication must preserve all aspects of the data and the data's associated technical data (included but not limited to: creation, modified, access, date and times, group associations, permissions, complete paths from partition root, partition details including but not limited to partition name, type and sizes). If for any reason technical data in any part cannot be provided with the duplication then a separate report describing that technical data must be provided.

[1]McKechnie v Evans (Production application – preliminary issue) [2024] VSC 661.

1. As I explained in my reasons dated 31 October 2024, this proceeding was merely an application for leave to appeal out of time. At that point, it was premature to determine Mr McKechnie’s production application. However, there were exceptional circumstances justifying a grant of leave to Mr McKechnie to appeal out of time, subject to any prejudice the respondent might claim. Following the publication of the reasons, I gave the respondent an opportunity to respond on these issues.

Grant of leave to appeal out of time

1. By email communication on 1 November 2024 to the Court, copied to Mr McKechnie’s prison, the respondent conceded that there were exceptional circumstances and that the respondent would not be materially prejudiced because of the delay. The respondent did not oppose a grant of leave to Mr McKechnie to appeal out of time.

1. I will make an order, to be issued with these reasons, granting leave pursuant to s 272(7) and (8) of the Criminal Procedure Act 2009 (the Act) to Mr McKechnie to appeal under s 272(1). The balance of these reasons treat the proceeding as a substantive appeal.

Remaining issues for determination

1. As explained in my reasons published on 31 October 2024, there remain two other key issues for determination:

(a)   Does the Court have power to order production of the documents sought?

(b)  If so, should the Court do so?

Does the Court have power to order production of the documents sought?

1. Neither party identified any decided case concerning the Court’s power to order production of documents in an appeal pursuant to s 272 of the Act.

1. Relying on the Court of Appeal decision in Intralot,[2] the respondent contended that there is no such power in the Court’s inherent jurisdiction and that such a power must have a statutory foundation. So much may be accepted.

   [2]State of Victoria v Intralot Australia Pty Ltd [2015] VSCA 358, [49]–[52] (Intralot). 

1. The respondent did not positively assert that there is no such statutory foundation, but argued that the responsibility for identifying one rests on Mr McKechnie. The respondent contended that Mr McKechnie has not demonstrated that the Court has power to order production in an appeal of this kind, and so the application must fail. Further or in the alternative, the respondent submitted that Mr McKechnie’s notice of appeal fails to identify any question of law, and so the application must fail for that reason also.

1. Although the parties did not identify it, I am satisfied that there is a statutory foundation for an order for production of at least part of what Mr McKechnie seeks in this matter.

1. At first instance before the Magistrates’ Court, under ss 39-41 and 43 of the Act, the prosecution could have been required to provide all the documents required to be included in a full brief to Mr McKechnie, including ‘a legible copy of any document which the prosecution intends to produce as evidence’ (s 41(1)(d)(v) of the Act).

1. However, it appears that Mr McKechnie has not been provided with a full copy of one of the exhibits the prosecutor tendered to the Magistrates’ Court. That exhibit is ‘Police Exhibit 10 – DVD copy of Report, 359 pages in length’ titled ‘ECS 156/0325 Thermaltake Tower HDD#2 (201509-E-2010-0003) – Categorised Images’ (HDD-2 images report). It was tendered to the learned magistrate in the form of a disk. Despite this occurring, the evidence before me leads me to conclude that it was not made available to Mr McKechnie during the Magistrates’ Court proceeding, and it has not been exhibited in this proceeding, save for its first page only.

1. Section 46 of the Act would have empowered the Magistrates’ Court to ensure that the HDD-2 images report was produced to Mr McKechnie during the proceeding before it, on application by Mr McKechnie. That power is not expressly conferred on the Supreme Court when it is hearing an appeal under s 272 of the Act. Is there some other basis on which a similar outcome can be achieved in the course of the appeal? In my view, there is: on at least two bases. Each of them can be said to have a close connection with ss 39-41, 43 and 46 of the Act, so in my view no inconsistency with Intralot arises.

1. First, in my view, there is a sufficiently broad power conferred by the Supreme Court (Criminal Procedure) Rules 2017 (CP Rules). The Act permits the Court to make rules that are ample to the task of requiring production of documents in the prosecution brief. Section 419(2) of the Act provides that ‘Rules of court made under this Act may regulate generally the practice and procedure under this Act.’ Rule 3A.03(4) of the CP Rules in turn confers discretion on a Judge to make ‘any other order to ensure the proper determination of the appeal.’ Although the title of r 3A.03 is ‘Notice of appeal’, I consider that sub-rule (4) is to be read broadly. It suffices to empower the Court to order production of any document that was required by the Act to be disclosed in the course of the prosecution to which the notice of appeal relates, provided the Court is satisfied that this is necessary to ensure the proper determination of the appeal.

1. Secondly and in any event, in a context where the Act required a document to be produced and s 46 would have empowered the Magistrates’ Court to order production, in my view the inherent supervisory jurisdiction of this Court would permit a similar order to be made by this Court on appeal, if it was necessary to the proper determination of the appeal. In short, even if r 3A.03(4) were to be read narrowly as being limited to orders directly affecting notices of appeal, the Court in any event has all the powers that are necessary to ensure the effective exercise of its regularly invoked jurisdiction.[3] This would include making orders of the kind contemplated by s 46 of the Act.

   [3]See, e.g., Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1, 32-33 [35].

1. In order to effectively exercise the Supreme Court’s jurisdiction in this appeal, I am satisfied that it is necessary to ensure the proper determination of the appeal that Mr McKechnie has access to all documents that were required by the Act to be included in the prosecution’s full brief and that were tendered by the prosecutor.

Should the Court order production of the documents sought?

1. The respondent opposes production. The respondent contended that Mr McKechnie has not demonstrated a legitimate forensic purpose for production of the documents he seeks. Further, or in particular, the respondent contended that there is no question of law identified in the proceeding and in any event no probative connection demonstrated between the documents sought and any such question.

Does the notice of appeal identify questions of law?

1. The respondent submitted that there are no questions of law in Mr McKechnie’s notice of appeal, and so I should not order production of any documents. As I follow the argument, it was said that the absence of a question of law means that I cannot be satisfied that any particular document would be relevant to the resolution of the issues in the appeal.

1. It is true that the notice of appeal does not include a precisely framed question of law. Nevertheless, it includes the following text that seems relevant to the application I am currently considering:

QUESTION OF LAW:

The first respondent:

1. depended upon a finding of fact where there was no evidence to support such finding.

2. reached a conclusion based upon a finding of fact which did not follow from the finding.

3. failed to provide sufficient reasons for deciding the case contrary to uncontradicted, inherently reasonable corroborated evidence.

4. was not satisfied beyond reasonable doubt that the defendant should be found guilty.

…

8. failed [to] provide adequate reasons so that decisions made may be properly address upon appeal.

1. Although somewhat generically framed, it is tolerably clear that this passage raises a question of whether there was no evidence to support Mr McKechnie’s conviction, and perhaps also a related question of whether the Magistrates’ Court failed to discharge any applicable legal duty to give reasons for its decision. One or both of these are questions of law.

1. The characterisation of an appeal alleging ‘no evidence’ arose recently in the Court of Appeal, on an appeal from a decision of the Trial Division relating to a decision of the Magistrates’ Court that had been appealed to the Trial Division under s 272 of the Act.[4] The appeal from the Magistrates’ Court to the Trial Division had raised a question as to whether there was no evidence to support a conviction. After identifying the element of the offence for which the appellant contended there was no evidence, the Court of Appeal said at [35]:

…The starting point of the inquiry is to identify the fact or facts that were required to be proved in order to make out the relevant element. Having done that, it will be necessary to determine whether the prosecution proved those facts either by admissible evidence, judicial notice, inference or a combination thereof.

[4]Pelligra v Forbes [2024] VSCA 242.

1. A question of this kind arises in this appeal.

1. I disagree with the respondent’s contention that the notice of appeal does not identify questions of law. I am satisfied that questions of law arise in this appeal as to whether there was no evidence supporting the conviction and whether the Magistrates’ Court failed to discharge any applicable legal duty to give reasons for its decision.

Are any of the documents sought by Mr McKechnie relevant to the questions in the appeal?

1. To the extent that paragraphs 1 and 2 of Mr McKechnie’s summons requires the production of evidence that was made available to the Magistrates’ Court during the proceeding at first instance, I am satisfied that I can and should order production. It is only that body of evidence that will be needed in addressing the questions of law that I have identified as arising in the appeal. It is only to that extent that I am satisfied that the documents sought in the summons have a sufficient connection to the questions raised by the appeal. I am not otherwise satisfied that production can or should be ordered. I will explain this conclusion in a little more detail.

1. The Magistrates’ Court found Mr McKechnie guilty of knowing possession of child pornography on the basis of various reports as to some of the data found on two hard disks in that computer.

1. Paragraphs 1 and 2 of the summons seek, in quite prescriptive terms, a report of data that was on a computer in Mr McKechnie’s home.

1. Paragraph 1 of the summons seeks reports of such data to the extent that it was ‘for the files that were included in the list of files available to the trial judge’; and paragraph 2 seeks a duplication of all other data that was on the computer.

1. Mr McKechnie contended that paragraph 1 of the summons relevantly requires the production to him of a complete copy of the HDD-2 images report.[5] It appears that he otherwise has access to reports of the files that were made available to the Magistrates’ Court. In other words, the utility of paragraph 1 is to require production of the entire HDD-2 images report. He is entitled to that document. I will order it to be produced to him.

   [5]See Mr McKechnie’s reply submissions filed 21 June 2024 [2].

1. The information in paragraph 2 of the summons would not be relevant to determination of the questions of law I have identified as arising in the appeal. Mr McKechnie seeks to support paragraph 2 of the summons by pointing to a list of the exhibits the prosecution intended to rely upon, and the inclusion in that list, as proposed item no 3, the Thermaltake PC tower seized from Mr McKechnie’s home. I have reviewed the relevant transcript and am satisfied that no such item was tendered to the Magistrates’ Court.[6] The prosecution was based on the reports that were tendered, not the Thermaltake PC tower itself, or the other, unreported data that may have been on the two hard disk drives inside the tower. I will not order production of any document or data falling within paragraph 2.

   [6]Exhibit ‘OPP-6’, 4.

1. Mr McKechnie has been given all available transcripts and so he no longer presses paragraph 3 of the summons.

Respondent’s intention to produce the document

1. Further and in any event, the respondent’s affidavit material indicated an intention to produce the HDD-2 images report to the Court voluntarily in due course. In his affidavit, the prosecutor says he will make the entire HDD-2 images report available to the Court on disk at or before the hearing of the appeal.[7] It follows as a matter of procedural fairness that the document should be produced in full to Mr McKechnie now, so he has a fair opportunity to prepare for the hearing of the appeal.

   [7]Affidavit of Heath Dosser sworn 28 November 2022 [16].

Conclusion

1. In conclusion, I will partially allow paragraph 1 of the summons for production of the documents, by ordering the production to Mr McKechnie of the HDD-2 images report in its entirety. The summons will otherwise be dismissed. I will make those orders now.

1. The parties have general liberty to apply and they may raise any question of costs if they see fit, provided they do so within 28 days of my orders for production.