Patsalis v Local Court of NSW

[2022] NSWSC 159

Supreme Court

New South Wales

Medium Neutral Citation:

Patsalis v Local Court of NSW [2022] NSWSC 159

Hearing dates:

10 February 2022

Date of orders:

25 February 2022

Decision date:

25 February 2022

Jurisdiction:

Common Law

Before:

Garling J

Decision:

(1)   Summons dismissed.

Catchwords:

CRIME — appeal and review — appeal from Local Court to Supreme Court — by person against whom an interlocutory order is made with leave on a question of law alone — whether question of law alone — whether leave should be granted — only one out of seven grounds involved a question of law alone — no reason for leave to be granted

CRIMINAL PROCEDURE — subpoena — application to set aside — illegitimate use of subpoena to obtain in effect discovery — no legitimate forensic purpose — not “on the cards” that the documents would assist the plaintiff’s case

APPEALS — procedural fairness — failure to give reasons — adequacy of reasons — reasons adequate

Legislation Cited:

Crimes Act 1900 (NSW), ss 192E(1)(b), 546D

Crimes (Appeal and Review) Act 2001 (NSW), s gv53(3)(b)

Supreme Court Act 1970 (NSW), s 23

Uniform Civil Procedure Rules 2005 (NSW) r 6.27

Cases Cited:

Attorney-General of NSW v Chidgey [2008] NSWCCA 65; 182 A Crim R 536

Carlton v R [2008] NSWCCA 244; 189 A Crim R 332

Commissioner for Railways v Small (1938) 38 SR (NSW) 564

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

Feeney v NSW Police [2017] NSWSC 190

Franklin v Commissioner of Police [2018] NSWSC 310

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

Orr v Cobar Management Pty Limited (2020) 103 NSWLR 36; [2020] NSWCCA 220

PPC v Williams [2013] NSWSC 1607; 238 A Crim R 25

Queanbeyan City Council v Environment Protection Authority [2011] NSWCCA 108

R v Jenkin (No 2) [2018] NSWSC 697

R v PL [2009] NSWCCA 256; 261 ALR 365

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

Texts Cited:

Not Applicable

Category:

Principal judgment

Parties:

Michael Patsalis (P)
Local Court of New South Wales (D1)
Graeme Kilgour (D2)
Andrew Boucas (D3)
Attorney-General for NSW (Intervenor)

Representation:

Counsel:
Self-Represented (P)
L Chapman (Intervenor)

Solicitors:
Crown Solicitors Office (Intervenor)

File Number(s):

2021/192300

Publication restriction:

Not Applicable

 Decision under appeal 

Court or tribunal:

Local Court

Jurisdiction:

Civil

Date of Decision:

9 June 2021

Before:

Abdul-Karim LCM

File Number(s):

2020/217720

Judgment

1. On 2 July 2021, the plaintiff, Michael Patsalis, filed a Summons seeking leave to appeal from a decision of Abdul-Karim LCM, in criminal proceedings which were then before the Local Court of NSW.

2. On 10 February 2022, the plaintiff was granted leave to file, and proceed upon, a Second Further Amended Summons which had been orally varied by that time.

3. For the reasons which follow, I would not grant leave to the plaintiff to appeal, and I would dismiss the Summons.

Summary of Background

4. Mr Patsalis is charged with a number of criminal offences which are listed for trial in the Local Court on 2 May 2022.

5. On 30 November 2020, on Mr Patsalis’ application, the Local Court issued a subpoena for the production of documents to Mr Boucas, who is the principal victim of the offences alleged against Mr Patsalis, and who complained to the Police.

6. The subpoena originally required the production of 10 different categories of documents.

7. Mr Boucas engaged a solicitor who corresponded with the Local Court and Mr Patsalis about the subpoena. In the course of that correspondence, on 2 February 2021, by email and on 3 February 2021 in written submissions, Mr Patsalis provided Mr Boucas with amended versions of the categories of documents required to be produced by the subpoena.

8. On 4 February 2021, Mr Boucas, through his solicitor, made an oral application in the Local Court to have the subpoena set aside.

9. Mr Boucas’ application was not resolved on 4 February 2021. There is some suggestion that the Magistrate reserved his decision on that date.

10. In any event, the matter came before his Honour again on 9 June 2021, on which occasion Mr Patsalis made further submissions opposing the application to set aside the subpoena. Neither Mr Boucas nor his solicitor appeared on that occasion.

11. As a result of decisions made that day by Abdul-Karim LCM about other subpoenas, Mr Patsalis ultimately pressed for the production by Mr Boucas of only two categories of documents.

12. On 9 June 2021, Abdul-Karim LCM made orders, for which his Honour gave ex tempore reasons, setting aside paragraphs 5 and 7 of the subpoena which were the two categories of documents pressed by Mr Patsalis.

Charges in the Local Court

13. Mr Patsalis is charged with:

1. six counts of dishonestly obtaining financial advantage or causing disadvantage by deception contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW);

2. one count of impersonating a police officer with intent to deceive and purporting to exercise powers and functions contrary to s 546D(2) of the Crimes Act; and

3. one count of impersonating a police officer contrary to s 546D(1) of the Crimes Act.

14. Mr Patsalis has entered pleas of not guilty in respect of each count.

15. Mr Boucas is the principal victim of the offences alleged against Mr Patsalis. Mr Boucas is proposed to be a Crown witness at the hearing of the charges, which is due to commence on 2 May 2022.

16. The Crown’s case against Mr Patsalis is that he approached Mr Boucas at some stage in 2020 and, by deception, procured from Mr Boucas payments totalling $19,200. Mr Boucas was deceived because:

1. in relation to some of the money paid, Mr Boucas thought he was loaning Mr Patsalis money to pay medical bills for Mr Patsalis’ treatment of stomach cancer, which condition was a fiction; and

2. in relation to other money paid, Mr Boucas thought he was paying Mr Patsalis, who was pretending to be a police officer, to settle tax debts which Mr Patsalis claimed Mr Boucas owed to the Australian Taxation Office.

17. Mr Patsalis’ case at the hearing will be to deny the charges and instead allege that Mr Boucas first approached Mr Patsalis. Mr Patsalis claims that Mr Boucas made “full confessions” to Mr Patsalis that Mr Boucas had committed serious tax offences which amounted to tax fraud.

18. In the context of Mr Patsalis’ application for the issue of the subpoena the subject of this application, Mr Patsalis says Mr Boucas’ bank records, business records and tax records will prove the fact that Mr Boucas committed tax fraud.

19. At the hearing in the Local Court on 9 June 2021, the Magistrate proceeded on the basis:

1. of the facts broadly summarised above and as they appear in the police statement of facts; and

2. that Mr Patsalis was seeking access to the material to impugn the credit of Mr Boucas at the defended hearing.

The Subpoena the Subject of this Application

Documents originally required by the subpoena

20. As noted earlier, the subpoena originally required the production of 10 categories of documents. For reasons which will be explained, Mr Patsalis presses only for the production of the documents required by paragraphs 5 and 7 of the subpoena.

21. It is therefore not necessary to record the entire contents of the subpoena issued on Mr Boucas. However, for the purpose of establishing the context of this application, the following may be observed about the categories of documents required to be produced by the subpoena.

22. Paragraphs 1 and 2 required all communications between Mr Boucas and H&R Block, Fairfield, a firm of tax accountants.

23. Paragraph 3 required all of Mr Boucas’ communications and records regarding an accident involving Mr Boucas on 1 July 2020.

24. Paragraph 4 required all communications from Transdev, a public transport company, to Mr Boucas about Mr Boucas’ accident (as described in paragraph 3), and “all associated records”.

25. Paragraph 5, as amended by Mr Patsalis’ submissions in the Local Court dated 3 February 2021, requires, essentially, all records of Mr Boucas’ business, Mosaicon, relating to: the sale of religious icons; the teaching of painting courses; and the painting of church murals. It reads, in full:

“1.   All documents regarding Mr. Andrew BOUCAS painting religious icons and selling them to people; and

2.   All documents regarding Mr. Andrew BOUCAS teaching courses to people on how to paint religious icons, for example throughout the year 2019 at the Parish of St Stephanos Greek Orthodox Church at Hurlstone Park in the hall next to the church; and in 2015 to 2016 at St. Basils nursing home at Lakemba. At the men’s shed Haldon Street (in 2015, 22 students paying $600 for course, about 20 lessons and $200 for materials) and other locations (Mr. Andrew BOUCAS words); and

3.   All documents regarding Mr. Andrew BOUCAS painting murals in 2017, 2018 and 2019 in Saint Nicholas Antiochian Orthodox Church [sic] in Punchbowl, and painting murals at St Catherine’s Greek Orthodox Church at 180 Coward Street Mascot NSW 2020, and other church’s and monasteries here in Australia and overseas (Mr. Andrew BOUCAS words).

4.   All documents regarding Mr Andrew BOUCAS receipt book(s) and or record keeping book(s) regarding 1 to 3 above (to evidence student’s names and persons who paid Mr. Andrew BOUCAS money).

5.   All documents regarding Mr. Andrew BOUCAS face book pages which show for example, cost of iconography classes, place where classes given, photographs of murals painted by Mr. BOUCAS in churches and monasteries.”

26. Mr Patsalis in his submissions to this Court dated 29 December 2021, has sought to amend paragraph 5 so that it would only require the production of documents which are dated between 2011 to 2020.

27. Paragraph 6 purportedly requires all of Mr Boucas’ communications ever, although it may be suggested that the paragraph only requires all of Mr Boucas’ communications regarding his role as the current facilitator of the Greek Orthodox Archdiocese Book Centre in Redfern.

28. Paragraph 7, as amended by Mr Patsalis’ email of 2 February 2021, requires: all Mr Boucas’ income tax records between 2011 and 2020; and contact details for Mr Boucas’ tax agents in that period. It reads, in full:

“Paragraph 7:

In respect to Mr. Andrew BOUCAS income tax records regarding his business work MOSAICON as a professional Orthodox iconographer and other employment such as the manager of the the [sic] Greek Orthodox Archdiocese Book Centre located at 242 Cleveland Street Redfern and past employment from 2011 to 2019:

1.   All documents regarding Mr. Andrew BOUCAS income tax records regarding painting religious icons and selling them to people from 2011 to 2020 or from 2015 to 2020; and

2.   All documents regarding Mr. Andrew BOUCAS tax records regarding teaching courses to people on how to paint religious icons, from 2011 to 2020 or from 2015 to 2020; and

3.   All documents regarding Mr. Andrew BOUCAS tax records regarding painting murals in church’s and monasteries here in Australia and overseas from 2011 to 2020 or from 2015 to 2020. 4. All documents regarding Mr Andrew BOUCAS receipt book(s) and or record keeping book(s) regarding 1 to 3 above (will include student’s names, and persons who paid Mr. Andrew BOUCAS money) from 2011 to 2020 or from 2015 to 2020.

4.   All documents regarding Mr. Andrew BOUCAS income tax records as manager of the Greek Orthodox Archdiocese Book Centre located at 242 Cleveland Street Redfern; and past employer’s from 2011 to 2019.

5.   The full names, addresses and emails of all of Mr. Andrew BOUCAS tax agents from 2011 to 2020.”

29. Paragraph 8 requires Mr Boucas’ phone call records for 1, 5 and 22 to 25 July 2020. Paragraph 9 requires all bank records. Finally, paragraph 10 requires all documents relating to Mr Boucas’ care for his mother. The paragraph purports to require production by both Mr Boucas and Mr Boucas’ mother.

Categories that remain in Dispute

30. On 9 June 2021, before Abdul-Karim LCM, Mr Patsalis only pressed for the production of documents required by paragraphs 5 and 7 of the subpoena.

31. On the same day, Mr Patsalis was granted access to inspect H&R Block records, Commonwealth Bank records and Transdev records, which were produced in response to other subpoenas issued on those organisations.

32. On the basis that Mr Patsalis was given access to the H&R Block records, Mr Patsalis abandoned his call on paragraphs 1 and 2. On the basis that Mr Patsalis was given access to the Transdev records, Mr Patsalis abandoned his call on paragraphs 3 and 4.

33. It is not clear why Mr Patsalis did not press for the production of documents required by the remainder of the subpoena.

34. Nevertheless, it seems that the only paragraphs that remain in dispute are paragraphs 5 and 7.

35. Mr Boucas has never produced any document in response to the subpoena issued to him.

The Local Court’s Reasons

36. On 9 June 2021, the Magistrate, having dealt with the other subpoenas referred to, delivered ex tempore reasons for his decision to set aside paragraphs 5 and 7 of the subpoena. Given the length of the transcript, it is useful to set those reasons out in full here:

“HIS HONOUR: The defendant issued a subpoena to the victim, Mr Boucas seeking production of documents in relation to para 5, as amended, which reads as follows:

‘1. All documents relating to Andrew Boucas painting religious icons and selling them to people; and

2. All documents relating to Andrew Boucas teaching courses to people on how to paint religious icons, for example, throughout the year 2019 at the Parish of St Stephanos Greek Orthodox Church at Hurlstone Park in the hall next to the church and in 2015 to 2016 at St Belis(?), a nursing home at Lakemba, at the Men's Shed held in (street addresses) in 2015, 22 students paying $600 for the course, about 20 lessons and $200 for material and other locations (Mr Andrew Boucas words); and

3. All documents regarding Mr Andrew Boucas painting murals in 2017, 2018 and 2019 at St Nicholas Orthodox Church in Punchbowl and painting murals at St Catherine Greek Orthodox Church at 180 Coward Street, Mascot in New South Wales 2020 and other churches and non monasteries here in Australia and overseas;

4. All documents regarding Mr Andrew Boucas' receipt books and/or record keeping books regarding 1 to 3 above;

5. All documents relating to the same person, Facebook pages, which show, for example, the cost of iconography classes, places and classes given, photographs of mural painted by the person in the churches and monasteries.’

Is that correct?

ACCUSED: Yes, your Honour.

HIS HONOUR: Yes, you take a seat you don't need to—

ACCUSED: Yes, sorry, your Honour.

HIS HONOUR: The other item in para 7:

‘All documents regarding that person, his income tax records regarding painting religious icons and selling them to people from 2011 to 2020 or from 2015 to 2020 and all documents regarding that person's tax records regarding teaching courses to people on how to paint religious icons from 2011 to 2020 or from 2015 to 2020. 3, all documents regarding Mr Boucas' tax record regarding painting murals in churches and monasteries here in Australia and overseas from 2011 to 2020 or from 2015 to 2020. All documents regarding that person's receipt books and/or record keeping books regarding items 1 to 3 above, including student names and persons who paid Mr Andrew Boucas money from 2011 to 2020 or from 2015 to 2020, All documents regarding Mr Andrew Boucas income tax record as a manager of the Greek Orthodox Archdiocese Book Centre located at 242 Cleveland Street, Redfern and past employers from 2011 to 2019. The full names, addresses and emails of Mr Andrew Boucas' tax agents from 2011 to 2020.’

The onus is on the defendant to establish on the balance of probabilities that there is a legitimate forensic purpose. The Court may set aside a subpoena that has no legitimate forensic purpose. To determine this question the Court applies a two stage test. Firstly, has the applicant identified a legitimate forensic purpose for which access is sought; and two, has the applicant established that it is on the cards that the documents will materially assist his case. The fact that documents sought are or may be relevant is not enough to support a finding that the subpoena has a legitimate forensic purpose. Beazley JA in Attorney General v Chidgey [2008] NSWCCA 65 at [62] stated, ‘Accordingly, the second element of the “test”, that is, that it must be “on the cards” that documents would materially assist the case, subsumes in it the notion that 'mere relevance' is insufficient.’

The defendant prepared a detailed outline of submissions he read on the record from his outline of submissions the test commencing at the foot of p 1 from para 2, starting the paragraph, ‘His Honour Mr Hamill J in R v Jenkins’. He read those matters on the record. I have listened to his submissions in relation to that. In relation to the paragraphs, he submits that it is "on the card". He sets out his submission on p 5, commencing at para 5 and he states:

‘In relation to paragraphs 5, 7 and 9 of the schedule of this subpoena to the alleged victim the business work records of Mosaicon documents of the alleged victim as a professional orthodox iconographer and the income tax records of the victim and the bank records of the victim and the subpoena regarding the Commonwealth Bank records’.

He submits that this shows incontrovertible objective documentary evidence that the victim has committed ‘very serious tax crimes, namely tax evasion, tax fraud believing and knowing, signing of false documents of the truth or declaration on a previous tax return.’ I will not read all of his submissions on the record. He later states in para 6 at the foot of the paragraph that:

‘H&R Block Tax Accountant evidence proves inter alia that the alleged victim, after making full voluntary confessions and admissions and disclosures about very serious tax crimes, which has been committed many years on whence they obtained from the accused, the accused's tax agents, H&R Block Tax Accountant details that he can contact them.’

He says that he made an appointment. On p 7 at para 12.3 states, proving that it was the alleged victim that approached the accused about these very serious tax crimes which have been committed for many years seeking the accused's assistance in resolving them. That is corroborated, for example, by H&R Block and other evidence. Then he goes on to say that that evidence, thus disproving all the evidence that the alleged victim police statement goes to establish is the element which make up the seven charges against the accused or disproving the prosecution case. He says, ‘This is documentary evidence that is exculpatory.’ Again, he asserts that the victim made full admissions to him.

I have set out the test. I consider the subpoena is too wide. Seeking all tax records. I'll deal firstly in relation to para 5. All documents regard to teaching courses on how to pay items. That is plainly very broad. I remind myself that the case against the defendant is that on separate occasions he is alleged to have dishonestly obtained a financial advantage by deception. The statement of facts that the prosecution seeks to prove forms part of my reasons. I will not read it on the record, but it appears to me that the prosecution case is that on separate occasions the defendant is alleged to have dishonestly obtained a financial advantage from the victim by deception on those separate occasions. The fact that the victim may or may not have offered classes appears to me entirely irrelevant to the matters before the Court.

I find, just having regard to the breadth of the subpoena that it is far too wide. I am not satisfied that the applicant has established on the balance of probabilities that it is on the cards that the documents will materially assist his case. There is no evidence to suggest firstly that the victim has committed tax fraud. The information that the defendant relies on is alleged to be made by way of an admission by the victim to the defendant. If that is so, no doubt the defendant can cross-examine the victim about those matters. But in any event, I am not satisfied that it is "on the cards", that the documents will materially assist. Accordingly, I set aside the call on the subpoena in relation to paras 7 and 9. Is that correct?

ACCUSED: No, your Honour. It should be paragraph 5 and paragraph 7.

HIS HONOUR: Paragraph 5 and 7, yes, thank you.”

Second Further Amended Summons

37. It is convenient to set out the grounds relied upon by the plaintiff in his Second Further Amended Summons. They are as follows:

“Ground 1A:

The Magistrate erred in law by making a decision which was not ‘open’ on the evidence, namely, ‘there is no evidence to suggest firstly that the victim has committed tax fraud’.

Ground 1AA:

The Magistrate erred in law by failing to determine the matter which was argued by the [a]ppellant.. The particulars are set out in the submissions under Ground 1A.

Ground 1B:

The Magistrate erred in law by making a decision which was not ‘open’ on the evidence, namely: ‘all documents regard to teaching courses on how to pay items. That is plainly very broad.’ [which is wrong and should have been read by his Honour the same way in which he read it onto the transcript at T.41: 25-32 ‘All documents relating to Andrew Boucas teaching courses to people on how to paint religious icons, for example ….’ and ‘The fact that the victim may or may not have offered classes appears to me entirely irrelevant to the matters before the Court.’

Ground 1BB:

The Magistrate erred in law by failing to determine the matter which was argued by the [a]ppellant.. The particulars are set out in the submissions under Ground 1B.

Ground 4:

The Magistrate erred in law in failing to give proper or adequate reasons for his Honour’s decision.

Ground 5:

There is an error of law in that the Magistrate erred in his conclusion that the appellant had failed to demonstrate a legitimate forensic purpose and that it is ‘on the cards’ that the documents in respect of paragraphs 5 and 7 as narrowed by the appellant on 1, 2, 3 February 2021 and set aside those paragraphs accordingly.

Ground 6 (as varied orally on 10 February 2022):

There is an error of law in that Mr Boucas was denied procedural fairness on 9 June 2021.”

Parties

38. There are three named defendants to these proceedings: the Local Court; Mr Graeme Kilgour, the police prosecutor in the Local Court; and Mr Boucas. They have each filed a submitting appearance.

39. On 27 October 2021, the Attorney-General filed a Notice of Motion seeking leave pursuant to s 23 of the Supreme Court Act 1970 (NSW) to intervene in the proceedings and be joined as the fourth defendant pursuant to r 6.27 of the Uniform Civil Procedure Rules 2005 (NSW).

40. On 10 December 2021, a Registrar of this Court granted, by consent, the orders sought by the Attorney-General in his Notice of Motion.

Issues to be Resolved

41. In summary, it is necessary to resolve the following issues:

1. Does this Court have jurisdiction under the Crimes (Appeal and Review) Act 2001 (NSW) to hear Mr Patsalis’ application for leave to appeal and, if leave is granted, Mr Patsalis’ appeal? This requires an assessment of whether Mr Patsalis’ appeal is on a ground that involves, or grounds that involve, a question of law alone.

2. Should leave be granted to Mr Patsalis to appeal the impugned decision of the Local Court to set aside the subpoena to Mr Boucas?

3. If leave is granted, should Mr Patsalis’ appeal be upheld? This requires an assessment of whether the subpoena has a legitimate forensic purpose and, if so, whether the subpoena is oppressive or is otherwise an abuse of process.

Jurisdiction

42. Mr Patsalis appeals to this Court under s 53(3)(b) of the Crimes (Appeal and Review) Act, which relevantly provides:

(3)   Any person against whom — …

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

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

43. Mr Patsalis must show that his appeal involves a question of law alone.

44. There is a question of law alone if the question of law can be stated and considered separately from the facts to which it may be connected in a given case: Williams v The Queen (1986) 161 CLR 278; [1986] HCA 88 at 287; Franklin v Commissioner of Police [2018] NSWSC 310 at [19].

45. Questions concerning any application of correct legal principle to the facts of a case are questions of mixed fact and law: R v PL [2009] NSWCCA 256; 261 ALR 365 at [26]. A “question of law alone” does not extend to an error of mixed fact and law: Carlton v R [2008] NSWCCA 244; 189 A Crim R 332 at [10].

46. It is appropriate first to consider whether the Grounds now raised by the plaintiff in the Second Further Amended Summons are “questions of law alone”.

47. Care must be taken in considering grounds of appeal such as those set out in the Second Further Amended Summons because, often, the framing of a question does not obviously or self-evidently identify a question of law. Bathurst CJ and Bell P in Orr v Cobar Management Pty Limited (2020) 103 NSWLR 36; [2020] NSWCCA 220 considered this issue. At [58] ff, the Chief Justice and the President said:

“58.   It follows from these decisions that, whether or not the answer to a question framed along the lines of ‘whether or not it was “open” to a judge to hold, on the facts as fully found, that a particular matter fell within the ordinary English meaning of a statutory expression reveals an error of fact or an error of law’ depends upon the answer to the question. If it was open to so find, any error in the judge’s conclusion would be one of fact, and not one with which a court authorised only to intervene on a question of law could disturb: see Edwards (Inspector of Taxes) v Bairstow [1956] AC 14 at 33-34 (“Edwards”); if it was not open to so find, the error would be one of law. Edwards has been cited with approval in this context in Vetter v Lake Macquarie City Council (2001) 202 CLR 439; [2001] HCA 12 at [25] and [109]; and Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 349; [1990] HCA 33.

59.   A question so framed is not, in our opinion, obviously or self-evidently a question of law; rather it is simply a question which, depending upon the answer, will reveal either an error of fact or an error of law. If the latter, an appellate court authorised to intervene only in respect of such errors may do so. Putting the matter slightly differently, a question whether or not a particular conclusion based upon facts fully found was ‘open’ to a judge cannot be characterised as a question of law in any a priori sense. It is, at most, a question of mixed fact and law, an expression which, in Da Costa v R (1968) 118 CLR 186 at 195; [1968] HCA 51, Windeyer J said ‘seems to describe a hybrid, the progeny of a dispute as to facts and as to the effect of the facts when they have been determined one way or the other’.

60.   It is well established that a question of mixed fact and law is to be differentiated from, and is not, a ‘question of law’. In Thomas v R (1937) 59 CLR 279 at 306; [1937] HCA 83 (‘Thomas’), Dixon J noted that a ‘mistake as to the existence of a compound event consisting of law and fact is in general one of fact and not a mistake of law’. Thomas was cited with approval in Iannella v French (1968) 119 CLR 84 at 114-115; [1968] HCA 14; see also Williams v R (1986) 161 CLR 278 at 287 and 314; [1986] HCA 88; cf Lavorato v R (2012) 82 NSWLR 568; [2012] NSWCCA 61 at [13].

61.   In Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 527; [1990] FCA 689, Ryan J observed that ‘if the question, properly analysed is not a question of law, no amount of formulary like ‘erred in law’ or ‘was open as a matter of law’ can make it into a question of law’.”

48. In addition to demonstrating that the appeal is based on a question of law alone, a plaintiff must also persuade the Court that leave to appeal ought be granted.

49. Leave from interlocutory decisions such as this, involving matters of practice and procedure, should not readily be granted, save for cases where it can be demonstrated that an error has caused an injustice: Fantakis v Local Court of New South Wales [2020] NSWSC 931 at [24] referring to NAR v PPC1 [2013] NSWCCA 25; 224 A Crim R 535 (“NAR”) at 539-540, [17] and PPC v Williams [2013] NSWSC 1607; 238 A Crim R 25 (“PPC”) at 35, [52]; see also Queanbeyan City Council v Environment Protection Authority [2011] NSWCCA 108 at [25].

50. In NAR, Beech-Jones J (as his Honour then was) said, at [18]:

“[T]he critical question for this application is whether a sufficiently strong case has been shown that there was an error of principle on the part of his Honour which would warrant an interference with the continued prosecution of these proceedings in the District Court.”

51. In PPC, Gleeson JA said, at [51]:

“It is to be accepted that one of the principal reasons for subjecting appeals from interlocutory orders in criminal cases to a requirement to obtain leave is to prevent or minimise the fragmentation of the process of criminal justice: Einfeld v The Queen (2008) 71 NSWLR 31; 189 A Crim R 192 at [23].”

52. Mr Patsalis submits that leave should be granted because he “has demonstrated… 5 errors of law” and that there is “significant merit in the appeal”. Mr Patsalis further submits that there has been a “grave injustice… to [him]” and that if leave is refused “a further grave injustice will occur”.

53. Mr Patsalis further submits that the appeal would “not interfere with the continued prosecution of [him] in the Local Court because the trial does not commence until 2 May 2022”.

54. Finally, Mr Patsalis submits that ground 6 “raises an important question which warrants leave being granted”.

55. The Attorney-General submits that Mr Patsalis has failed to justify why there should be a grant of leave.

56. The Attorney-General submits that Mr Patsalis’ submissions as to the merits of his appeal are based on generalised statements of principle and do not properly go to the question of whether leave ought be granted in this particular case. The Attorney-General also submits that Mr Patsalis has failed to identify any authority for his submission that the grant of leave is “arguably stronger” where the appeal is brought prior to the commencement of the criminal trial.

57. The Attorney-General further submits that:

1. the underlying merits of the appeal are weak;

2. the Local Court’s decision has caused no injustice to Mr Patsalis;

3. the present appeal does not raise any “important question” to be resolved, as contemplated by Gleeson JA in PPC; and

4. it is in the interests of justice more broadly that this Court refuse to entertain substantively unmeritorious leave applications.

58. The Attorney-General also refers to my decision in Feeneyv NSW Police [2017] NSWSC 190, where I observed at [32] that reasons for not granting leave would include that:

1. the case is a summary criminal proceeding; and

2. ordinarily, a court ought not intervene at an interlocutory stage in the conduct of a summary criminal proceeding, particularly when the applicant has the right to appeal against any decision of the Local Court to the District Court.

Grounds 1A and 1AA

59. These Grounds ought be considered together as the submissions dealt jointly with both grounds.

60. The principal issue is whether the conclusion of the Local Court Magistrate that “there is no evidence to suggest firstly that the victim has committed tax fraud” was open to him, on the material before him.

61. The plaintiff submits that, to the contrary of this conclusion, admissions contained in the material before the Magistrate demonstrated unarguably that the victim, Mr Boucas, had committed tax fraud.

62. The plaintiff submitted that there was uncontroverted evidence of this by reason of the contents of the statement of Mr Boucas dated 24 July 2020, which was before the Magistrate. Mr Boucas outlined in that statement a conversation which he said that he had with the plaintiff, the contents of which the plaintiff says contain a clear admission of tax fraud. The plaintiff’s case in the criminal proceedings will be that no such conversation took place. However, because the prosecution depends upon that conversation, amongst other evidence, the plaintiff says he was entitled to issue the subpoena on the basis that the conversation constituted an admission of tax fraud.

63. The conversation contained in the statement of Mr Boucas is as follows:

“15.   After I sat down with [the plaintiff], we had the following conversation with words to the effect of:

He said: ‘I have something to tell you. I don’t want you to get scared or anything, everything is fine. I am actually a police detective and we saw that you have had some problems with your tax, and you didn’t report your earnings for a couple of years. I want you to know that everything has been fixed. I know people high up that can access information and I saw your name pop up and I remembered you from the book shop and I wanted to help you out. …’

I said: ‘Is that bad, I didn’t know that this was very serious. What do I need to do?’

He said: ‘You don’t need to do anything. Because I know these high up people, I have already given some money to these people to have your name erased. Don’t worry, it’s not a lot.’”

64. The conversation continued in ways that are not directly relevant.

65. It is to be observed that in this conversation, the plaintiff asserted to the victim that the victim had not reported his “earnings for a couple of years”. In substance, the victim responded that he did not know that “this was very serious”.

66. The conversation is capable of a number of possible constructions.

67. One is that the plaintiff was asserting to the victim that he had not lodged tax returns for a couple of years and the victim was asking whether that was a serious problem for him. The second is that the plaintiff could have been asserting that, although tax returns may have been lodged, they did not contain all of the moneys earned by the victim.

68. Whatever meaning can be drawn from these somewhat ambiguous words, the mere fact that a tax return had not been lodged or, alternatively, that a tax return had been lodged but with an incorrect report of income earned, does not of itself and without more bespeak a tax fraud. A fraud is a wrongful or dishonest deception of another, including the Australian Taxation Office (“ATO”), made by one or more acts which are intended to result in financial or personal gain either to the individual perpetrating the acts or to another.

69. The mee fact that a person did not lodge a tax return may amount to a criminal offence, but that does not mean that such failure is necessarily fraudulent. There could be a number of explanations as to why a person did not lodge a tax return. One explanation may be that the person is an Australian resident and that their taxable income was not more than the tax‑free threshold, which is presently $18,200.

70. Secondly, there may be a reasonable excuse for not lodging the tax return. Thirdly, the effect of not lodging the tax return may not be to give, here the victim, any financial advantage. For example, had the victim been employed and if tax had been withheld from wages and paid to the ATO, any tax return lodged may not have resulted in a requirement that the victim pay any additional income tax but rather that the victim may be entitled to receive a refund. Hence, the failure to lodge a tax return could not have constituted a fraud since it gave rise to no financial advantage to the victim or detriment to the ATO.

71. Fourthly, a failure to lodge a tax return even when tax was in fact owed to the ATO may not constitute a fraud because it may not have been accompanied by any dishonesty. For example, if the failure to lodge the tax return was the result of advice given by an independent tax agent that there was no obligation to lodge the tax return, in those circumstances it may be that no dishonesty accompanied the failure to lodge the tax return and, accordingly, no fraud occurred.

72. I immediately do not say that any of these reasons were relevant to the alleged circumstances of Mr Boucas. However, I am satisfied that it was open to the Magistrate to find that the mere contents of the statement of Mr Boucas, to which I have made reference at [63] above, would not of itself and without more, require the Magistrate to form a conclusion that the victim had committed tax fraud and that, accordingly, there was evidence of tax fraud.

73. As these grounds are not made out because it was open on the evidence to the Magistrate to find that there was no evidence that the victim had committed a tax fraud, I conclude that they do not raise question of law alone, nor would it be appropriate for a grant of leave to be extended on these grounds.

Grounds 1B and Grounds 1BB

74. Again, it is appropriate that these grounds be considered together.

75. These grounds raise the question of whether the conclusion of the Magistrate, that the terms of sub-paragraph 2 of paragraph 5 of the Subpoena (which I have set out above at [25]) were “plainly very broad”, was open on the evidence, and if not, whether an error of law occurred.

76. In the Commissioner for Railways v Small (1938) 38 SR (NSW) 564, Jordan CJ said at 573:

“A writ of subpoena duces tecum may be addressed to a stranger to the cause or to a party. If it be addressed to a stranger, it must specify with reasonable particularity the documents which are required to be produced. A subpoena duces tecum ought not to be issued to such a person requiring him to search for and produce all such documents as he may have in his possession or power relating to a particular subject matter. It is not legitimate to use a subpoena for the purpose of endeavouring to obtain what would be in effect discovery of documents against a person who, being a stranger, is not liable to make discovery.”

77. The contents of both paragraphs 5 and 7 the subpoena called for all documents regarding the victim’s teaching courses. Although examples were given of such courses in 2015, 2016 and 2019, there was no time limit attributed to the call for the documents, nor was there any restriction on the type of documents. The paragraph would have included things such as instructional materials distributed to students, lists of supplies and equipment needed, lists of reference material to which students may have regard and many other documents which had nothing whatsoever to do with the assertion that the victim, Mr Boucas, had committed tax fraud.

78. In concluding that the paragraph was “plainly very broad” and that classes being offered were entirely irrelevant to the matter before the Court, the Magistrate was doing no more than applying the principle to which reference is made above in Small.

79. There was no error in the Magistrate’s conclusion. His conclusion involved the application of settled principle to the facts of this case, namely, what the terms of the subpoena were and, therefore, did not involve a question of law alone.

80. Because the Magistrate was, in my opinion, correct, and because these two grounds do not involve a question of law alone, leave to appeal on these grounds ought also be refused.

Ground 4

81. This ground submits that the Magistrate failed to give proper or adequate reasons for his decision. If this is established, it would constitute a question of law which the Court is called upon to consider.

82. The plaintiff submits that the reasons delivered by the Magistrate did not give proper or adequate consideration as to the absence of connection between the documents which were sought by the subpoena and the issues which were to be ventilated at the hearing as identified in Ground 5 of the appellant’s Summons.

83. It is convenient to consider Ground 5 in combination with Ground 4.

84. Ground 5 asserts an error of law on the part of the Magistrate in drawing his conclusion that the appellant had failed to demonstrate a legitimate forensic purpose or that it was “on the cards” that the documents sought by paragraphs 5 and 7 of the subpoena would materially assist his case.

81. The submissions in support of Ground 5 have some similarity to, although they are not identical with, the plaintiff’s submissions with respect to the earlier grounds about his assertion of the commission of tax fraud by Mr Boucas. The plaintiff submits that one of the central issues to be contested in the criminal proceedings was whether it was, as the prosecution asserted, the plaintiff who first approached Mr Boucas and had the conversations to which reference has been made earlier, or whether it was Mr Boucas who approached the appellant and, as contended for by the plaintiff, made full voluntary confessions and admissions to him about his commission of serious tax crimes and sought the plaintiff’s assistance in resolving those serious offences.

82. In his reasons delivered orally at the conclusion of argument, the Magistrate set out, correctly, the terms of the disputed paragraphs in the subpoena addressed to the victim, being paragraphs 5 and 7.

83. He drew attention to the fact that the onus fell on the plaintiff in these proceedings to establish to the Local Court on the balance of probability that there was a legitimate forensic purpose for the documents being sought by the subpoena. His Honour then set out in a summary, but entirely accurate, form the relevant tests in accordance with the decision of the Court of Criminal Appeal in Attorney-General of NSW v Chidgey [2008] NSWCCA 65; (2008) 182 A Crim R 536 at [62]. His Honour also referred to the decision of Hamill J in R v Jenkin (No 2) [2018] NSWSC 697 at [17] and [21].

84. His Honour then referred to, albeit briefly, the submissions made by the plaintiff to him, which were principally in writing but also oral.

85. His Honour then turned to his decision. He said that the terms of subpoena were too wide. As earlier discussed, this was a correct conclusion. The terms of paragraphs 5 and 7 in the subpoena reflect a classic fishing expedition on the part of Mr Patsalis. Mr Patsalis did not identify any specific documents by title or nature, he did not always identify any specific time period for the existence of those documents, when a time period was nominated it was for a very lengthy period – 9 years – which continued after the offences were alleged to have occurred, and the terms of the subpoena caught many, many documents which had nothing whatsoever to do with any issue raised by Mr Patsalis in the criminal proceedings.

86. This alone, on the grounds set out in Small is a sufficient basis to set aside a subpoena.

87. His Honour however went on to consider whether the arguments of Mr Patsalis had persuaded him that there was a legitimate forensic purpose for seeking the documents, and whether it was “on the cards” that the documents, if produced, would assist him in meeting the prosecution case.

88. His Honour found that there was no relationship between the contents of the subpoena and the issues before the Court. In large part, his Honour placed emphasis on the fact that he was not satisfied that the material before him gave rise to any credible assertion of tax fraud being committed by the victim. As earlier discussed, this was a matter open to his Honour.

89. The reasons for judgment, as earlier indicated, were given orally.

90. In my view they addressed, albeit briefly, the appropriate facts, the relevant authorities and applied the authorities to those facts and found that the Court was not satisfied by the plaintiff in these proceedings that the subpoenas ought be allowed.

91. I do not regard it as essential to the reasoning which disposes of an interlocutory application on a subpoena in a Local Court where those reasons are given orally and at the end of considerable argument which included the discussion of various of the issues ultimately relevant for the determination of the matter to include a full discussion of each and every argument put in the course of the oral and written submissions.

92. In my view, these reasons were entirely adequate in the particular circumstances.

93. I would not be prepared to uphold Ground 4 and it follows that Ground 5 would also fail.

Ground 6

98. The plaintiff submits there had been a denial of procedural fairness to Mr Boucas in the course of the hearings before the Local Court and, accordingly, an error of law existed, and the decision of the Magistrate should be set aside.

99. In support of this ground, the plaintiff argues that the transcript of the proceedings before the Local Court reveals that Mr Boucas and his then solicitor were not in court throughout the hearing with respect to the subpoena.

100. In the course of the hearing in the Local Court, the Magistrate was informed that the victim’s solicitor objected to producing the documents pursuant to the subpoena and that he had lodged written submissions. The Magistrate identified those written submissions by date and by the identity of the lawyers. He read out parts of those submissions and heard submissions from the plaintiff as to their effect. The Court was informed of emailed negotiations between the plaintiff and the victim’s solicitor with respect to the content of the subpoena which had resulted in the plaintiff redrafting parts of the schedule to the subpoena.

101. No particular further mention was made of the contents of the submissions during later discussions.

102. The plaintiff submits that because the victim and his solicitor were not present in Court, there was a denial of procedural fairness to the victim.

103. I do not accept this submission as correct. Whilst it was open to Mr Boucas or his solicitor to attend Court when the subpoena was returnable to make submissions seeking the Court set it aside, or excusing production of the documents pursuant to it, there was no obligation on them so to do. The Magistrate was entitled to proceed to deal with the application of the plaintiff for an order that the victim comply with the subpoena whether the victim was present or not. It was clear the victim and his solicitor originally had notice of the subpoena and had the opportunity to put submissions in writing about whether it should be enforced. They did so. In those circumstances there was no denial of procedural fairness.

104. Even if there was a denial as submitted, this is not a ground that would justify the grant of leave. Mr Boucas does not appear in this Court making complaint about a denial of procedural fairness. His presence could not have made any difference to the outcome because the Magistrate declined to enforce paragraphs 5 and 7 of the subpoena.

105. There is no reason for a grant of leave on this ground.

Conclusion

106. In light of the foregoing reasoning, I conclude that, with the exception of Ground 4, none of the grounds raise a point of law alone and in respect of those grounds the Summons should be dismissed. In respect of Ground 4, I am not satisfied that the reasons delivered by the Magistrate were, in the particular circumstances, inadequate.

107. Nor, having regard to the terms of the subpoena, am I satisfied that there is any reason for leave to be granted.

Orders

108. I make the following orders:

1. Summons dismissed.

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Decision last updated: 28 June 2022