McKechnie v Evans (Production application - preliminary issue)
[2024] VSC 661
•31 October 2024
| 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: | 31 October 2024 (First revision 8 November 2024) | |
CASE MAY BE CITED AS: | McKechnie v Evans (Production application — preliminary issue) | |
MEDIUM NEUTRAL CITATION: | [2024] VSC 661 | (First revision 8 November 2024) |
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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 — Magistrates’ Court made orders over a period including a conviction and sentencing order — Whether Magistrates’ Court made an order registering appellant on the Sex Offenders Register — Whether respondent is correct in characterising proceeding as an application for leave to appeal out of time — Whether leave to appeal out of time should be granted — 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
The ‘appellant’ in this proceeding, Mr McKechnie, sought production of three categories of documents as follows:[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.
3) All transcripts for the proceeding from which this appeal is brought. (provided in searchable digital format).
[1]Summons dated 2 October 2023, filed 24 October 2023. The respondent filed an outline of submissions in response to the summons on 30 November 2023. Pursuant to orders made at a directions hearing on 24 April 2024, Mr McKechnie filed submissions on 27 May 2024 in support of his summons, the respondent filed submissions on 31 May 2024 in response, and Mr McKechnie filed reply submissions on 21 June 2024.
Mr McKechnie presses his application for production of categories 1 and 2. The parties consented to a determination on the papers.[2]
[2]Transcript of proceedings, Andre McKechnie v Detective Peter David Evans (Supreme Court of Victoria, Gray J, 24 April 2024) 25.
The respondent opposes Mr McKechnie’s application on various bases.
The key issues I must determine are:
(a) Is the proceeding at present merely an application for leave to appeal out of time, or is it a substantive appeal?
(b) If it is an application for leave, should I grant leave to appeal out of time?
(c) Does the Court have power to order production of the documents sought?
(d) If so, should the Court do so?
In these reasons, I explain my conclusion on the first issue and my preliminary view on the second. Consideration of the remaining issues will follow in due course.
Is the proceeding an application for leave or a substantive appeal?
The respondent contends that all that is presently on foot is an application by Mr McKechnie for leave to commence an appeal out of time.[3]
[3]Respondent’s outline of submissions filed 30 November 2023, [4].
If this were so, it might be premature to consider whether there could be a legitimate forensic purpose for the production sought by Mr McKechnie. That is because the criteria relating to grants of leave to appeal out of time may not extend to the issues to which the production relates.
Section 272 of the Criminal Procedure Act 2009 (Act), which is in pt 6.2 of the Act, provides relevantly:
272 Appeal to Supreme Court on a question of law
(1)A party to a criminal proceeding (other than a committal proceeding) in the Magistrates' Court may appeal to the Supreme Court on a question of law, from a final order of the Magistrates' Court in that proceeding.
…
(3)An appeal under subsection (1) is commenced by filing a notice of appeal in accordance with the rules of the Supreme Court within 28 days after the day on which the order complained of was made.
…
(7)An appeal commenced after the end of the period referred to in subsection (3) is deemed to be an application for leave to appeal under subsection (1).
(8)The Supreme Court may grant leave under subsection (7) and the appellant may proceed with the appeal if the Supreme Court—
(a)is of the opinion that the failure to commence the appeal within the period referred to in subsection (3) was due to exceptional circumstances; and
(b)is satisfied that the case of any other party to the appeal would not be materially prejudiced because of the delay.
(9)After hearing and determining the appeal, the Supreme Court may make any order that it thinks appropriate, including an order remitting the case for rehearing to the Magistrates' Court with or without any direction in law.
…
The proceeding was commenced by notice of appeal filed on 4 January 2021. The notice described Mr McKechnie as the ‘appellant’. The notice stated that the appellant:
… seeks to appeal to the Supreme Court of Victoria pursuant to section 272 of the Criminal Procedure Act 2009 (Victoria) against the judgement given and final orders made by the first respondent[4] on:
· 10 September 2020 (Trial Judgement)
· 24 September 2020 (Sentencing Considerations Orders)
· 26 October 2020 (Sentencing Orders)
· 7 December 2020 (Additional Sentencing Orders)
[4]The first respondent named in the notice was the learned magistrate, who has since been removed as a party.
The notice of appeal also stated under the heading, ‘Order subject to appeal’ as follows:
All orders associated with the Magistrate’s Court of Victoria (Wangaratta) case numbers G12666961 and G13301604.
Greater specificity of which and what parts of these orders will follow the receipt of, the final orders, court records, and confirmation that there exists no further orders or records awaiting receipt from the Magistrates’ Court and respondents. At the date of this document these items have not yet been received.
The relevant Court rules are in Order 3A of Chapter VI, the Supreme Court (Criminal Procedure) Rules 2017. Rule 3A.04 requires the appellant to file an affidavit which includes as exhibits a copy of the order under appeal and a copy of any reasons given for the order, or else ‘their absence as exhibits shall be accounted for in the affidavit’.
Here, Mr McKechnie’s affidavit affirmed 4 January 2021 stated relevantly that his sentencing ‘finalised on 7 December 2020’ and that ‘[a]t present I have not received any of the written transcripts, the relevant orders, or the complete audio of the hearings from the Magistrates’ Court’.
The notice of appeal was filed on the 28th day after 7 December 2020. If the date of the final order appealed from was 7 December 2020, then the notice of appeal was filed within time and the proceeding is a substantive appeal. If the date of the final order is one of the earlier dates on which the Magistrates’ Court made its orders, the proceeding is an application for leave to appeal out of time. I suppose there is a third possibility: that is, the proceeding could be a substantive appeal from any order made on 7 December 2020 but otherwise a mere application for leave to appeal. The parties did not address these possibilities in any detail.
The respondent submits that contest of the charges against Mr McKechnie were heard on 10 September 2020, and that on 26 October 2020, Mr McKechnie was found guilty of each charge and sentenced to an aggregate of 21 days’ imprisonment, and that there was ‘a further hearing on 7 December 2020 to deal with the question of sex offender registration’.[5] The respondent submits that Mr McKechnie filed his notice of appeal ‘approximately six weeks after the time limit for filing an appeal passed on the conviction and sentencing orders’.[6] On this basis, the respondent submits, the proceeding is an application for leave to appeal under s 272(7) of the Act.
[5]Respondent’s submissions filed 30 November 2023, [3].
[6]Respondent’s submissions filed 30 November 2023, [4].
The respondent has filed an affidavit of the police prosecutor.[7] This affidavit exhibits the transcript of the hearings on 10 September 2020 (albeit nothing said by Mr McKechnie during the morning session is transcribed), 26 October 2020, and 7 December 2020. It also exhibits extracts from the Magistrates’ Court register recording the orders of the magistrate on 26 October 2020.[8] There is no extract of any order made on 7 December 2020 or any other day regarding sex offender registration or reporting obligations.
[7]Affidavit of Heath Dosser sworn 28 November 2022 and filed on 30 November 2022.
[8]Exhibit ‘OPP-7’.
The transcript on 7 December 2020 indicates relevantly as follows:
(a) the learned magistrate referred to an application by the prosecutor, first made on 26 October 2020 and renewed on 7 December 2020, that Mr McKechnie be ‘registered’ on the Sex Offenders Register for ‘a life term’;[9]
[9]Exhibit ‘OPP-6’, 4.
(b) his Honour regarded ‘registration’ as mandatory given that there were three separate charges of offending and three convictions, even though it might have been possible for those counts to have been rolled into a single charge;[10]
[10]Exhibit ‘OPP-6’, 4-6.
(c) Mr McKechnie said he had prepared an application or appeal to the Supreme Court;[11]
[11]Exhibit ‘OPP-6’, 5 lines 1-8.
(d) in the course of explaining that he had received no documentation giving notice of the renewed registration application, Mr McKechnie stated his understanding of the time limit for an appeal as follows:[12]
[12]Exhibit ‘OPP-6’, 6 lines 40-46.
Prior to 26 October, there were no other matters that the magistrate – Magistrates Courts matters G126666961 and G13301604 which were finalised on 26 October. Since that time, as the above matters have completed at the Magistrates Court of Victoria, I have lodged an application for appeal, which is to be made within 28 days which ended – that 28 days ended about two weeks ago. If there are any other matters to be dealt with, other than the appeal, which I have made an application for, I have not received notification or documentation.
(e) his Honour said:[13]
… I am compelled by law to place you on the Sex Offenders Registration, or to register you as a sex offender for life. This is a decision that you can appeal to the County Court along with my decision of finding you guilty with respect to the charges, which would entitle you to a hearing de novo and afford you the opportunity of discussing with the prosecution why these charges couldn’t be rolled up into one and that you could defend one single charge rather than three, which is the ultimate consequence, if you were to be found guilty, would be a different registration regime. I’m sorry, sir. But this is the order that I am compelled to make. It’s mandatory and I do wish you well in the future. We will send you … the paperwork.
[13]Exhibit ‘OPP-6’, 8 lines 2-15.
Did the Magistrates’ Court in fact make an ‘order’ relating to Mr McKechnie and the Sex Offenders Register on 7 December 2020? If so, what was it?
The Sex Offenders Registration Act 2004 is not explicit as to the mechanism by which registrable offenders who commit certain relevant offences after 2004 are entered on the Sex Offenders Register. The Victorian Law Reform Commission had this to say on the subject in its report ’Sex offenders registration’ in December 2011 (references omitted):[14]
[14]Victorian Law Reform Commission, Sex offenders registration (Final Report, 22 December 2011). The Act was amended after publication of this report, but the passage remains an accurate description of the Act in late 2020. See also R v Cheetham (2006) 13 VR 304, [4].
3.17 Statutory inclusion occurs automatically once the adult offender has been sentenced for a Class 1 or Class 2 offence. There is no need for a court to make a registration order and, in fact, a court has no power to do so because of the automatic operation of the statutory scheme. However, the court must not have regard to any consequences under the Sex Offenders Registration Act when sentencing the offender.
3.18 There is marked confusion about the statutory inclusion component of the registration scheme. Some judicial officers make registration orders in these circumstances because they believe the Act requires them to do so. In other cases, the parties have assumed that an offender has avoided inclusion in the Register when the judicial officer has not made a formal registration order.
…
3.47 When a court imposes a sentence for a registrable offence it must give the offender written notice of the reporting obligations and the reporting period.
…
3.50 Adult registered sex offenders are required to report for eight years, 15 years or the rest of their lives, depending on the offences they have committed.
The offences of which Mr McKechnie was convicted were Class 2 offences — possession of child pornography contrary to s 70(1) of the Crimes Act 1958,[15] which is referred to as a Class 2 offence in item 18 of Schedule 2 to the Sex Offenders Registration Act 2004.
[15]Section 70(1) has since been repealed but was in force at the time of the offences.
I assume that, in referring to registration for life on 7 December 2020, his Honour had in mind the duration of reporting obligations, referred to in s 34 of the Sex Offenders Registration Act 2004. That section relevantly provided, in s 34(1)(c)(iii):
(1)A registrable offender must continue to comply with the reporting obligations imposed by this Part for—
…
(c) the remainder of his or her life, if he or she—
…
(iii) has ever been found guilty of 3 or more Class 2 offences.
Mr McKechnie’s notice of appeal and supporting affidavit indicated that he was not given complete access to documents recording the Magistrates’ Court’s orders. The respondent has not produced any order of 7 December 2020. During the directions hearing before me on 24 April 2024, counsel for the respondent stated that the certified extracts of orders on 7 December 2020 had been provided to the Court on 22 April 2024. However, assuming counsel was referring to exhibits to the affidavit of the prosecutor, that was not the case.[16]
[16]On 21 April 2024, the respondent provided to the Court a Zip file containing the exhibits numbered OPP-1 to OPP-7 of the affidavit of Heath Dosser sworn 28 November 2022 and filed on 30 November 2022. Those exhibits do not include any certified orders of the Magistrates’ Court on 7 December 2020.
On the other hand, it is recorded in the transcript that the magistrate referred to making an order on that day.
On a proper analysis of what occurred, the Magistrates’ Court made no order on 7 December 2020. Registration and lifetime reporting obligations were statutory outcomes of the three convictions of Class 2 offences against Mr McKechnie recorded in the Magistrates’ Court’s orders of 26 October 2020, without any orders being required.
Is the appeal brought within time? More precisely, was the notice of appeal filed within 28 days of the ‘final order’ of the Magistrates’ Court from which Mr McKechnie appeals?
I think not. The better view is that no order was made on 7 December 2020. The final order from which Mr McKechnie seeks to appeal was made on 26 October 2020.
This proceeding is therefore currently merely an application for leave to appeal out of time.
Should leave to appeal out of time be granted?
My preliminary view is that I should grant leave to appeal out of time. The transcripts on 26 October 2020 and 7 December 2020 suggest that exceptional circumstances led to Mr McKechnie’s failure to commence the appeal within 28 days after 26 October 2020. That would justify a grant of leave under s 272(8)(a) of the Act, depending on any prejudice to the respondent under s 272(8)(b).
As the transcripts on 26 October 2020 and 7 December 2020 show, the magistrate indicated that he would be hearing an application by the prosecutor for registration of Mr McKechnie on the Sex Offenders Register, and he purported to hear that adjourned application on 7 December 2020. His Honour further indicated that his decision could be appealed as part of a wider appeal from the earlier orders. These indications seem to me to constitute exceptional circumstances within the meaning of s 272(8)(a) of the Act.
Next steps
I will give the respondent an opportunity to be heard on whether I should grant leave to appeal out of time. Depending on the material and submissions that may result, I may give an opportunity to Mr McKechnie to respond. After that, I intend to consider the remaining issues raised by the application.
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