Paulo v Commissioner of Police

[2021] NSWSC 517

Supreme Court

New South Wales

Medium Neutral Citation:

Paulo v Commissioner of Police [2021] NSWSC 517

Hearing dates:

8 April 2021

Date of orders:

13 May 2021

Decision date:

13 May 2021

Jurisdiction:

Common Law

Before:

Brereton JA

Decision:

(1) Pursuant to SCR, Pt 51B r 5(5), extend time to commence these proceedings to 21 September 2020;

(2) Dismiss the summons; and

(3) By consent, order that the defendant pay the plaintiff’s costs.

Catchwords:

APPEALS – Leave to appeal – From Local Court – From committal proceedings – Where parties in agreement that magistrate erred in setting aside subpoena – Where documents have been produced to applicant – Where no practical utility in granting relief – Whether need to correct manifest error – Where not clear that subpoena had legitimate forensic purpose in context of committal proceedings – Where not clear whether Supreme Court able to grant relief sought – Leave refused

STATUTORY INTERPRETATION – Crimes (Appeal and Review) Act 2001 (NSW), s 53(3)(a) – Whether setting aside subpoena within the meaning of “order” – Meaning of “any person” – Meaning of “against” – Meaning of “in relation to the person” – Use of extrinsic materials – Explanatory note and second reading speech

CRIMINAL PROCEDURE – Committal proceedings – Whether legitimate forensic purpose in issuing subpoena in committal proceedings under new legislative scheme where no facility for defendant to adduce evidence

APPEALS – Leave to appeal – Remedies – Scope of Crimes (Appeal and Review) Act 2001 (NSW), s 55(3)(a) – Whether orders for production to Supreme Court available

APPEALS – Leave to appeal – Remedies – Alternative relief sought – Certiorari refused for discretionary reasons mirroring reasons for refusing leave to appeal – Declaration refused on basis that such relief would be an advisory opinion

APPEALS – Procedure – Time limits – Extension of time – Where not opposed – Extension granted

Legislation Cited:

(NSW) Children and Young Persons (Care and Protection) Act 1998, s 29(1)(e)

(NSW) Courts Legislation Amendment Act 1999

(NSW) Crimes (Appeal and Review) Act 2001, ss 53(3), 55(3)(a)

(NSW) Criminal Appeal Act, s 5F

(NSW) Criminal Procedure Act 1986, ss 55, 58, 91, 93, 170, 222, 283C(5)

(NSW) Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017

(NSW) Justices Act 1902, ss 104(3)-(4)

(NSW) Supreme Court Rules 1970, Pt 51B r 5(5)

Cases Cited:

Application of the Attorney-General for NSW dated 4 April 2014 (2014) 246 A Crim R 150; [2014] NSWCCA 251

Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667; 75 A Crim R 8

Commissioner of Police v Chidgey [2007] NSWSC 417

DPP v SW [2009] NSWSC 524

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

Feeney v New South Wales Police [2016] NSWSC 1708

Franklin v Commissioner of Police [2018] NSWSC 310

Jolley v DPP [2020] NSWSC 1406

Mackintosh v Commissioner of Police (NSW) [2010] NSWSC 1064

Mann v Commissioner of Police [2020] NSWSC 369

Murdoch v Petterson [2005] NSWSC 1359

Potier v Maloney [2005] NSWSC 336

R v Abdullah (1999) 6 Crim LN 54 [1025]; [1999] NSWCCA 188

R v Colby (1995) 84 A Crim R 125

R v Keeling (NSWCCA, Cole JA, Smart and James JJ, 060359/1996, 5 September 1996, unreported); (1997) 4 Crim LN 1 [647]

R v Smith (1996) 86 A Crim R 308

R v Stig (Court of Criminal Appeal (NSW), Mahoney ACJ, Simpson and Barr JJ, 17 October 1996, unreported)

Smithers v Beveridge (1994) 14 ACSR 197

Steele v Director of Public Prosecutions [2007] NSWSC 926

Thompson v DPP (2014) 21(11) Crim LN [3453]; [2014] NSWSC 522

Warburton v Director of Public Prosecutions (NSW) [2017] NSWSC 69

Williams v Cronin [2014] NSWSC 1578

Texts Cited:

Explanatory Note, Courts Legislation Amendment Bill 1999 (NSW)

New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 4 December 2001

New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 11 October 2017

New South Wales Legislative Council, Parliamentary Debates (Hansard), 2 June 1999

Category:

Principal judgment

Parties:

Fuaeka Paulo (Plaintiff)
Commissioner of Police (First Defendant)
Local Court of New South Wales (Second Defendant)

Representation:

Counsel:
G Lewer (Plaintiff)
K Curry (Defendants)

Solicitors:
Maria Walz Legal (Plaintiff)
Office of the General Counsel, New South Wales Police Force (Defendants)

File Number(s):

2020/275516

Judgment

1. On 1 September 2018, committal proceedings were commenced against the plaintiff in respect of a number of indictable offences. A charge certificate dated 19 March 2019 was filed on 20 March 2019.

2. One of the prosecution witnesses is a vulnerable witness, in respect of whom there have been two recorded interviews. The prosecution brief included transcripts of those recorded interviews (one dated 31 August 2018, and one dated 27 April 2020), but not the recordings themselves; it was not required to do so because (NSW) Criminal Procedure Act 1986 (“CPA”), s 283C(5), provides:

Nothing in this Part requires the prosecutor to serve or cause to be served on the accused person a copy of the actual recording made by an investigating official of an interview with the vulnerable person (other than a transcript of the recording).

3. Counsel for the plaintiff viewed the 31 August 2018 interview recording, but not the 27 April 2020 recording. The plaintiff personally has never had the opportunity to view either recording. In order to obtain access to the recordings themselves, in the course of the committal proceedings the plaintiff procured the issue from the Local Court on 27 May 2020 of a subpoena addressed to the first defendant Commissioner of Police for production of the actual recordings of both interviews. On the Commissioner’s application, on 17 August 2020 Stapleton LCM set aside the subpoena as an abuse of process, for the reason that s 283C(5) would be circumvented if an accused could subpoena a copy of the recording of the interview with the vulnerable person, as that provision has the effect not only that the recording is not required to be served but also that the accused is not entitled to a copy.

4. On 18 November 2020, the plaintiff was committed for trial to the District Court, pursuant to CPA, s 93. An indictment has since been presented, and the matter has been set down for trial generally (that is to say, not as to fitness to plead, notwithstanding that the committal was under s 93).

5. By summons filed in this Court on 21 September 2020 and amended on 1 December 2020, the plaintiff claims:

1. an extension of time to 21 September 2020 to commence the proceedings (pursuant to (NSW) Supreme Court Rules 1970 (“SCR”), Pt 51B r 5(5));

2. an order setting aside the decision to set aside the subpoena (by way of appeal, pursuant to (NSW) Crimes (Appeal and Review) Act 2001 (“CAR Act”), s 55(3)(a));

3. alternatively, an order in the nature of certiorari quashing that decision;

4. a declaration that CPA, s 283C(5), does not prevent a recorded interview with a vulnerable person being produced in answer to a subpoena for production;

5. an order that the defendant produce to this Court the items called for by the subpoena;

6. access to the materials so produced;

7. alternatively, that the subpoena be relisted in the Local Court; and

8. costs.

6. The plaintiff’s written submissions of 25 January 2021 referred to the judgment of Adams J in DPP v SW (“SW”), to which the Magistrate had not been referred, in which it was said:[1]

“The point is a short one. The Director submits that no order can be made by the Magistrate for production of the copied tape recording to the accused’s solicitor because it would comprise, in effect, part of the "proof of evidence" required by Div 2 of chapter 4 of the Act and that subs 185(5) does not require the prosecutor to serve a copy of the actual recording. There are a number of difficulties with this contention which have been explored during argument and I do not intend to cover them all here. It is sufficient to say that Div 2 of chapter 4 of the Act provides for pre-trial procedures which are to be followed by the parties to criminal proceedings and, aside from irrelevant references to the function of the Court (for example in ss 183(4), 187 and 188), imposes obligations, in substance, on the prosecution. In my view it is clear that subs 185(5) is limited to the necessity for the prosecutor to comply with procedures mandated by Division 2. It does not limit the power of a court to require production of any matter which the court considers ought to be produced; still less impose any limits on the court’s powers as to access. Those powers comprehend the making of copies, whether of documents or reportings, and the giving of access including by way of actual possession of any matter produced including copies.”

1. [2009] NSWSC 524 at [4] (Adams J).

7. In response to those submissions, the Commissioner promptly conceded that the Magistrate’s decision was erroneous and offered to produce the material which had been sought by the subpoena to the plaintiff, subject to appropriate confidentiality undertakings. However, the plaintiff insisted that, there being error on the face of the record attending the Magistrate’s decision, the decision should be set aside and there should be a formal ruling of this Court on the issue. It was explained that one reason why the matter remained on foot was that it was legally aided on a particular basis, presumably being the public interest in resolving the question authoritatively.

8. Although there were no proceedings remaining in the Local Court, the plaintiff sought the documents referred to in the subpoena for use in connection with trial in the District Court. One might have thought that the appropriate course would have been to issue a subpoena from the District Court. The plaintiff took the position that to do so was arguably improper, given the Local Court’s decision that the subpoena was an abuse of process, and that position is to a point understandable, although it is difficult to see how the contention that it was an abuse could be maintained once the Commissioner had conceded that the Magistrate’s decision was erroneous. Thus the plaintiff pressed for the relief sought in the summons.

9. I agree that her Honour erred in placing reliance on s 283C(5). I accept that, for the reasons given by Adams J in SW, s 283C(5) does not preclude the production of a recording pursuant to a subpoena. That approach is also supported by Application of the Attorney-General for NSW dated 4 April 2014,[2] which concerned (NSW) Children and Young Persons (Care and Protection) Act 1998, s 29(1)(e), which provides:

   2. (2014) 246 A Crim R 150; [2014] NSWCCA 251.

29 Protection of persons who make reports or provide certain information

(1) If, in relation to a child or young person or a class of children or young persons, a person makes a report in good faith to the Secretary or to a person who has the power or responsibility to protect the child or young person or the class of children or young persons:

…

(e) a person cannot be compelled in any proceedings to produce the report or a copy or extract from it or to disclose or give evidence of any of its contents,

It was held that that provision had to be read down so as not to preclude an accused’s right to a fair trial by prohibiting him or her from compelling by subpoena the production of s 29 reports that were relevant to the issues at trial. [3] If that applied to s 29(1)(e), the terms of which plainly encompass the production of documents pursuant to compulsory process such as a subpoena, and are not, like CPA, s 283C(5), confined to the contents of a prosecution brief, then that approach would apply a fortiori to s 283C(5).

3. Application of the Attorney-General for NSW dated 4 April 2014 (2014) 246 A Crim R 150 at 159-160 [27]-[32] (Macfarlan JA; Beazley P and Bellew J agreeing); [2014] NSWCCA 251.

10. Accordingly, while s 283C(5) does not require a recording to be served as part of a brief of evidence, it says nothing about the production of a recording pursuant to a subpoena. Insofar as the Magistrate relied on the contrary view, her Honour was in error – though regrettably she was not assisted by reference to the relevant authorities.

11. However, as it was not clear to me that it was appropriate in all the circumstances to grant all or any of the relief sought by the plaintiff, but as there was no suggestion that there was any legitimate basis on which production of the documents for the purpose of the District Court proceedings could or would be opposed, and given that their production was urgently required for that purpose, a practical solution was provided by the following regime, which was instituted at the end of the hearing:

“1. Note that the defendant Commissioner of Police, by his counsel, undertakes to the Court to produce forthwith to the plaintiff’s legal representatives, upon confidentiality undertakings acceptable to the Commissioner, an electronic copy of the actual recording of the two recorded interviews of the witness HT.

2. Reserve liberty to apply in the event of any difficulty arising in relation to the form of confidentiality undertaking to be given by the plaintiff’s legal representatives.

3. Direct that the parties lodge with my associate, by close of business on 9 April, supplementary submissions as to the scope of CAR Act, ss 53(3)(a) and 55(3)(a)(iv).

4. Otherwise, reserve judgment.”

12. The issues which remain for consideration are:

1. Whether an appeal lies, under CAR Act, s 53(3)(a), from the Magistrate’s decision;

2. If so, whether leave to appeal should be granted. This includes questions as to the utility and appropriateness of granting relief, including the consequential relief (production to this Court) sought; and

3. If not, whether the alternative relief of certiorari or a declaration should be granted.

Appeal under s 53(3)(a)

13. CAR Act, s 53(3), relevantly provides:

(3) Any person against whom:

(a) an order has been made by a Magistrate in relation to the person in any committal proceedings, or

(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.

14. Thus the right of appeal, by leave, is given to “[a]ny person against whom an order has been made by a Magistrate in relation to the person in any committal proceedings”. This appears to require that (a) the Magistrate has made an order, (b) against the appellant, and (c) in relation to the appellant.

15. Although it has been held that a refusal by a magistrate to order the attendance of a witness under CPA, s 91, cannot be the subject of an appeal, because a refusal to make an order is not an order,[4] I accept that an order setting aside a subpoena is an order within the meaning of s 53(3)(a). Unlike a refusal to make an order, the setting aside of a subpoena involves a formal order of the Court. This Court has, in a number of cases, proceeded on the basis that a decision by a Magistrate to set aside a subpoena or to refuse access to subpoenaed material constitutes an “order” for the purposes of s 53(3)(b), and there is no relevant distinction with s 53(3)(a) in this respect. [5]  

    4. Thompson v DPP (2014) 21(11) Crim LN [3453]; [2014] NSWSC 522 at [40]-[41] (Davies J), applying Murdoch v Petterson [2005] NSWSC 1359 at [12] (Grove J), R v Colby (1995) 84 A Crim R 125 at 128 (Gleeson CJ; Kirby P and Dowd J agreeing), and Steele v Director of Public Prosecutions [2007] NSWSC 926 at [39] (McClellan CJ at CL).

    5. In Feeney v New South Wales Police [2016] NSWSC 1708; Franklin v Commissioner of Police [2018] NSWSC 310; Mann v Commissioner of Police [2020] NSWSC 369 and Fantakis v Local Court of NSW [2020] NSWSC 931, it appears to have been assumed, without deciding, that a defendant could appeal from an order setting aside a subpoena, but in each case the summons was dismissed on the merits. In Mackintosh v Commissioner of Police (NSW) [2010] NSWSC 1064, an appeal succeeded; however, that an appeal lay under s 53(3)(b) was common ground and not argued. In Jolley v DPP [2020] NSWSC 1406, an appeal under s 53(3)(a), N Adams J observed at [28] that it was accepted that this Court has proceeded on the basis that a decision by a magistrate to set aside a subpoena or refuse access to subpoenaed material constitutes an interlocutory order from which an appeal lies under s 53(3)(b), and took the same approach in respect of s 53(3)(a). Her Honour was “satisfied that the Magistrate's order [granting access to documents produced on subpoena, in committal proceedings] is one that is amenable to an application for leave to appeal under s 53”, and the appeal was allowed.

16. Although it was held, by Malpass AsJ in Commissioner of Police v Chidgey,[6] that “any person” referred only to the defendant, and not to a subpoena recipient, this may be doubted; the contrary view is implicit in Jolley v DPP,[7] but it was not argued. It need not be resolved in this case, because the appellant was in any event the defendant in the Local Court.

    6. [2007] NSWSC 417 at [25] (Malpass AsJ).

    7. [2020] NSWSC 1406 at [20]-[31] (N Adams J).

17. Section 53(3) originated as ss 104(3)-(4) of the (NSW) Justices Act 1902 (“Justices Act”), which were introduced by the (NSW) Courts Legislation Amendment Act 1999:

(3) Appeals in relation to committal proceedings A defendant or an informant may appeal under this Division to the Supreme Court against any order that is made in relation to committal proceedings, on a ground that involves a question of law alone, but only with the leave of the Supreme Court.

(4) Appeals in relation to interlocutory orders A defendant or an informant may appeal under this Division to the Supreme Court against any interlocutory order that is made by a Magistrate in summary proceedings, on a ground that involves a question of law alone, but only with the leave of the Supreme Court.

18. The Second Reading Speech by the Hon JW Shaw, Attorney-General, explained that this was “to clarify that an appeal under [Part 5 of the Justices Act] may be brought, with the leave of the Supreme Court, in relation to committal proceedings and in relation to interlocutory orders made by a magistrate in summary proceedings”. [8] The Explanatory Note suggests that such right of appeal already existed, [9] but it did not. Formerly, the only avenue for challenging orders made in committal proceedings by was prerogative, declaratory, or injunctive relief. [10]

    8. New South Wales Legislative Council, Parliamentary Debates (Hansard), 2 June 1999 at 762.

    9. Explanatory Note, Courts Legislation Amendment Bill 1999 (NSW) at 4.

    10. See, for example, Smithers v Beveridge (1994) 14 ACSR 197 at 198 (Dunford J).

19. As will be seen, in that form the words “in relation to” governed “the committal proceedings”, not “the person”; and there was no requirement that the order be “against” the appellant. There is no doubt that the Magistrate’s order in these proceedings would have been amenable to appeal under the former s 104(3).

20. The present form was adopted when the (NSW) Crimes (Local Court Appeal and Review) Act 2001[11] was introduced. The second reading speech records that the intention of the new Bill was to consolidate the existing law. [12] It does not suggest that there was any intention to restrict rights of appeal given under the previous law.

    11. As the CAR Act was originally entitled.

    12. New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 4 December 2001 at 19428-19429.

21. In my view, for the purposes of s 53(3), an order is taken to be made “against” a person if it is directly against the interests of that person. On that basis, an order setting aside a subpoena issued at the request of the plaintiff is an order against the plaintiff. The plaintiff is the person aggrieved by the order.

22. The observation that the second reading speech reveals no intention to narrow the scope of the right of appeal from that conferred by s 104(3) is relevant also to the words “in relation to the person”. It is not clear what work that phrase does in addition to the requirement that the order be “against” the appellant. However, the transposition of the predicate of the phrase “in relation to” from “committal proceedings” to “the person” is consistent with the view that the right of appeal was to be extended to persons affected by orders in committal proceedings, and not limited to the defendant in them but extends, for example, to a person ordered to produce documents under subpoena. [13] In that context, the phrase “in relation to the person” would emphasise the requirement that the order appealed from have some relationship to the appellant.

    13. Previously, under the repealed Justices Act, s 104(3) (which confined an appeal to the informant or defendant), the appropriate avenue of appeal where a person other than the defendant or informant was aggrieved by an order made by a magistrate concerning a subpoena was (NSW) Criminal Appeal Act, s 5F: Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667; 75 A Crim R 8; R v Smith (1996) 86 A Crim R 308; R v Stig (Court of Criminal Appeal (NSW), Mahoney ACJ, Simpson and Barr JJ, 17 October 1996, unrep); R v Keeling (1997) 4 Crim LN 1 [647]; R v Abdullah (1999) 6 Crim LN 54 [1025]; [1999] NSWCCA 188.

18. I accept that an order setting aside a subpoena issued at the request of a defendant in committal proceedings is an order “against” and “in relation to” that defendant, and accordingly that an appeal lies, by leave, under s 53(3)(a).

Leave to appeal

24. The plaintiff accepts that, insofar as he relies on CAR Act, s 55, leave to appeal is required, due to s 53(3)(a). The plaintiff submits that leave is appropriate as the decision below involved an error of law that can be easily distilled, is contrary to authority of this Court, and is of real significance to both the proceedings and the plaintiff’s right to a fair trial. The defendant did not oppose a grant of leave.

25. In the present case, as has been noted, the plaintiff has been committed for trial and an indictment has been presented. In those circumstances, discretionary considerations which tend against interfering arise, as was pointed out in Potier v Maloney:[14]

“[45] Section 53(3) Appeal and Review Act provides an avenue for appeal, by leave, with respect to an error of law made in committal proceedings. Where the error of law is said to apply to an order of committal for trial which has already been made, and where a bill of indictment has been found, discretionary considerations apply to the granting of leave of the type considered in V v McDonald (Court of Appeal, 16 February 1995, BC9504205).

[46] The holding of committal proceedings is not a necessary prerequisite to a trial on indictment: R v Butler (1991) 24 NSWLR 66 at 68; V v McDonald, above, at pages 4-5, 6. Likewise, the holding of committal proceedings which are free of irregularity is not a necessary prerequisite to a trial on indictment: R v Butler, above, at 74.

[47] It is necessary to bear in mind the nature and purpose of committal proceedings. The proceedings are executive or ministerial in nature and do not determine guilt: R v Butler, above, at 68. A decision by a Magistrate to discharge a defendant in committal proceedings does not give rise to a plea in bar by way of autrefois acquit. Even if a discharge occurs, it is open to the Director of Public Prosecutions to find a bill of indictment and maintain a prosecution of the person on indictment: Grassby v The Queen (1989) 168 CLR 1 at 13-14.

[48] From time to time, this Court has granted relief in the nature of mandamus with respect to committal proceedings, where a factual foundation has been established for such relief and there are no discretionary reasons for withholding relief. Relief has been granted in cases (usually with respect to s.48E orders) where there has been no order of committal for trial, let alone a bill of indictment being found: see, for example, McKirdy v McCosker (2002) 127 A Crim R 217.

[49] Where committal for trial has occurred and a bill of indictment has been found, an entirely different set of circumstances exist. In Sergi v Director of Public Prosecutions (Court of Appeal, 10 September 1991, BC9101577) Kirby P (Meagher and Handley JJA agreeing) said at pages 8-9:

“In the present case, the DPP has now found a bill. The order of the magistrate, although historically anterior, was not a necessary pre-condition or a legal foundation for the DPP’s action. See R v Butler (1991) 24 NSWLR 66 at 68. That action stands on its own footing. The decision of the magistrate committing the claimant for trial has, thus, now been overtaken by the DPP’s decision. Any order directed to the magistrate to reopen the committal proceedings could not, of itself, affect the DPP’s exercise of discretion to find the bill. To the contrary, the magistrate would be entitled, unless the DPP elected to withdraw and revoke the bill so found, to regard the reopened committal as entirely futile”.

The decision in Sergi has been applied in a number of cases: Burns v Barnett (Studdert J, 1 October 1993, unreported) at pages 9-10; Christov v Price [1999] NSWSC 1264 at paragraph 7; Potier, above at 179.

[50] If a bill of indictment has been found in the District Court, it would require a most exceptional case for this Court to consider intervention by the grant of relief, in effect, to re-open committal proceedings. In the present case, the matter is already before the District Court. It is open to the Plaintiff to make pre-trial applications under Pt 53 r 10 District Court Rules. Likewise, it is open to the Plaintiff to make application for an inquiry in advance of trial of the type envisaged in R v Basha (1989) 39 A Crim R 337.”

14. [2005] NSWSC 336 at [45]-[50] (Johnson J).

26. There is no practical need in the particular proceedings for relief: there are no further proceedings in the Local Court, where the subpoena issued, and the documents have been produced to the plaintiff, pursuant to the undertaking to which I have referred. The plaintiff submitted that relief should nonetheless be granted, to correct manifest error, and to overcome the potential difficulty in the way of issuing a subpoena from the District Court. As to the latter, it is clear that, faced with the Commissioner’s concession, an application to the District Court for leave to issue a subpoena, if such application be required for more abundant caution, would succeed; in any event, the plaintiff now has the material sought. As to the former, the correct position has already been established by the judgment of Adams J in SW, [15] and will be re-stated by being recorded in these reasons; nothing would be added by formally setting aside the Magistrate’s order.

    15. [2009] NSWSC 524 at [4] (Adams J).

27. In Feeney v New South Wales Police,[16] Adamson J refused leave to appeal for somewhat similar reasons:

“[16] When Mr Feeney’s summons was filed on 15 April 2016, this Court had jurisdiction to entertain it, as the Local Court proceedings were on foot. However, once the Local Court proceedings were concluded after final hearing on 28 April 2016, there was no longer any utility in a challenge to an order setting aside a subpoena in those proceedings. Moreover, the appeal to the District Court is in the nature of a rehearing (s 18(1) Crimes (Appeal and Review) Act). Accordingly, it was open to Mr Feeney to subpoena documents in that Court. As set out above, he has caused subpoenas to be issued in that Court, which have been dealt with by Haesler DCJ. The evidence does not reveal whether a subpoena in the same terms as the one set aside has been sought in the District Court.

[17] Even if Stoddart LCM’s decision involved a question of law alone (which it plainly does not because of the discretionary matters that were considered before the decision was made), it would not be appropriate to grant leave since the order made was subsumed in the orders made at the conclusion of the Local Court proceedings. It follows that leave to appeal ought be refused.”

16. [2016] NSWSC 1708 at [16]-[17] (Adamson J).

28. Similar considerations apply here, given the independence of the proceedings on indictment in the District Court from the committal proceedings that preceded them.

29. Moreover, for the reasons that follow, I do not consider that it is clear that the subpoena was wrongly set aside, although the reason relied on by the Magistrate was incorrect. This question arises because of the nature of committal proceedings, and in particular the fact that there is now no facility for a defendant to adduce evidence in them. The nature and procedure in committal proceedings was radically changed by the (NSW) Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 (“the 2017 Act”), which commenced on 30 April 2018. An outline of the current procedure is provided by CPA, s 55:

55 Outline of committal proceedings steps

Subject to this Part, the steps for committal proceedings are generally as follows:

(a) committal proceedings are commenced by the issuing and filing of a court attendance notice,

(b) a brief of evidence is served on the accused person by the prosecutor,

(c) a charge certificate setting out the offences that are to be proceeded with is filed in the Local Court and served by the prosecutor on the accused person,

(d) if the accused person is represented, 1 or more case conferences are held by the prosecutor and the legal representative for the accused person,

(e) if the accused person is represented, a case conference certificate is filed in the Local Court,

(f) the accused person pleads guilty or not guilty to each offence being proceeded with and the Magistrate commits the accused person for trial (if the accused person pleads not guilty) or for sentence (if the accused person pleads guilty).

30. Provision is made for examination of prosecution witnesses (at ss 82-92); in the second reading speech for the 2017 Act, the Attorney-General the Hon Mark Speakman observed that these “hearings may assist the parties to assess better the case against the accused and to facilitate further negotiations about the charges and possible offers to plead guilty”. [17] However, there is no opportunity for a defendant to adduce evidence in committal proceedings.

    17. New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 11 October 2017 at 280.

31. As was also explained in the second reading speech, the substantive committal decision and committal hearings were abolished, so that magistrates are no longer required to consider the evidence and determine if there is a reasonable prospect that a jury, properly instructed, would convict the accused person of the offence. Instead, magistrates are required to be satisfied that the new steps certifying the charges and holding a case conference have been completed before committing the matter to a higher court for trial or sentence. [18]

    18. New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 11 October 2017 at 278.

32. There is no statutory obstacle to the issue of a subpoena in committal proceedings. As the plaintiff submitted, a subpoena to produce can be issued under CPA, s 222, which provides:

222 Issue of subpoenas

(1) A registrar, if requested to do so by a party to proceedings, is, subject to and in accordance with the rules, to issue to the person named any of the following subpoenas:

(a) a subpoena to give evidence,

(b) a subpoena for production,

(c) a subpoena both to give evidence and for production.

33. Although s 222 appears in Part 3 (Attendance of witnesses and production of evidence in lower courts) of Chapter 4 (Summary procedure) of the CPA, and Chapter 4 applies (by s 170) “to or in respect of proceedings for summary offences, including proceedings for indictable offences that are being dealt with summarily”, s 222 is made applicable to committal proceedings by s 58, which provides:

The following provisions of this Act apply, subject to any necessary modifications and to any provision of this Part, to committal proceedings conducted by a Magistrate in the same way as they apply to proceedings for offences before the Local Court:

(a) sections 30, 36, 37, 38, 39, 40, 41 and 44,

(b) Part 3 (Attendance of witnesses and production of evidence in lower courts) of Chapter 4,

(c) Part 4 (Warrants) of Chapter 4.

34. However, the question remains, for what legitimate forensic purpose could a defendant issue a subpoena in committal proceedings, in circumstances where there is no facility for a defendant to adduce evidence? The plaintiff submitted that such purposes might include informing the defendant in connection with the case conference, and potentially assisting in the examination of witnesses ordered to attend pursuant to CPA, s 91. The latter is certainly at least arguable: a subpoena might obtain a document which could be used in cross-examination of a prosecution witness. It is less clear to me that obtaining a document to better inform the defendant (or the prosecutor) for the purpose of a case conference is a legitimate forensic purpose: it is not for the purpose of adding, in any way, to the relevant evidence in the committal proceedings.

35. As this issue – a potentially important one – was not the subject of full argument, it is undesirable that I express a concluded view. But it is an additional reason for declining leave to appeal.

36. Further, the consequential relief sought by the plaintiff – production to this Court, and access – is unnecessary and of doubtful availability. CAR Act, s 55(3)(a), provides:

(3) The Supreme Court may determine an appeal against an order referred to in section 53(3)(a) or (b):

(a) by setting aside the order and making such other order as it thinks just, or

(b) by dismissing the appeal.

37. That section cannot mean that the appellate court can make any other order at all: it must be construed in the context that it is a power associated with allowing an appeal. There is no further proceeding in this Court ancillary to which production to this Court would be appropriate. What the plaintiff really wants is for the material to be available in connection with the proceedings in the District Court.

38. In Warburton v Director of Public Prosecutions (NSW),[19] Schmidt J quashed an order of the Local Court setting aside a subpoena during a committal hearing, but simply remitted the matter to the Local Court, though it is not apparent that any other relief was sought. In Williams v Cronin,[20] s 55(3)(a) was utilised, by consent, to make access orders in this Court to documents produced on subpoena in the Local Court; however, that was an order the Local Court could itself have made, and was the exercise by an appellate court of its jurisdiction to make the order which ought to have been made below, where the documents had already been produced to the Local Court. Neither case supports an order for production to this Court of documents required to be produced by subpoena to the Local Court.

    19. [2017] NSWSC 69.

    20. [2014] NSWSC 1578.

39. For my part, I doubt that an order for production to this Court would be within s 55(3)(a), and even if it were that it would be a proper order to be made. However, yet again in a context where the issue has not been the subject of full argument, it is undesirable that I express a concluded view, and as the plaintiff has access to the documents in any event pursuant to the undertaking given by the Commissioner, it is quite unnecessary to do so.

40. In circumstances where the plaintiff has been committed for trial and an indictment has been presented, where the order of the Local Court has no ongoing practical effect, where it is unclear that there was a legitimate forensic purpose for the issue of the subpoena in committal proceedings, where it is doubtful that the consequential relief sought by the plaintiff can be granted, where there would be no utility in remitting the matter to the Local Court, and where in any event the plaintiff now has access to the material sought under the subpoena, the preferable course is to refuse leave to appeal.

Alternative relief: certiorari and declaration

41. As I have concluded that an appeal lies, by leave, under CAR Act, s 53(3)(a), it is unnecessary to consider the plaintiff’s alternative application for an order in the nature of certiorari. My above reasons for refusing leave to appeal would also have resulted in my refusing certiorari for discretionary reasons.

42. The plaintiff also sought a declaration that CPA, s 283C(5), does not prevent a recorded interview with a vulnerable person being produced in answer to a subpoena. That was sought so that the defendant cannot avoid production in the District Court if a similar subpoena be issued there. The declaration sought is said to have ‘real utility’ because it can be used to issue a subpoena in the same terms in the District Court if needed.

43. As the plaintiff now has access to the material, there is no utility in facilitating its production to the District Court. In substance, the declaration would be an advisory opinion expressed in general terms (extending beyond the particular parties). Insofar as it is desirable to resolve the question concerning the effect of s 283C(5), that will sufficiently be done by these reasons recording my opinion that the provision does not prevent the production of a recorded interview with a vulnerable person pursuant to a subpoena.

Extension of Time

44. The summons was required, by SCR, Pt 51B r 5(3), to be filed within 28 days of 17 August 2020, being the date of the Magistrate’s decision. It was not filed until 22 September 2020, which was eight days out of time. The plaintiff explains the delay by reference to “various procedural steps required to be taken by the Legal Aid Commission” prior to filing the summons. The defendant does not oppose the extension.

Costs

45. In its written submissions, the defendant agreed to pay the plaintiff’s costs. Although I propose to dismiss the summons, in circumstances where the proceedings were the result of an erroneous decision made by the Magistrate on and in accordance with the defendant’s application, the defendant may be seen as bearing responsibility for these proceedings. Notwithstanding that I decline to grant any relief beyond the undertakings which have been given, those undertakings themselves represent a measure of success for the plaintiff.

Orders

46. For the foregoing reasons, my orders are:

1. Pursuant to SCR, Pt 51B r 5(5), extend time to commence these proceedings to 21 September 2020;

2. Dismiss the summons;

3. By consent, order that the defendant pay the plaintiff’s costs.

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Endnotes