R v Eastman (No 20)
[2017] ACTSC 229
•18 August 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Eastman (No 20) |
Citation: | [2017] ACTSC 229 |
Hearing Date: | 15 August 2017 |
DecisionDate: | 18 August 2017 |
Before: | Kellam AJ |
Decision: | The Crown’s application for the issue of a warrant to bring a witness to Court is dismissed. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Warrants, Arrest – subpoena unable to be served on witness – application by Crown for arrest warrant – no express power for Supreme Court to issue warrant where subpoena not served – whether inherent power of court permits issue of warrant |
Legislation Cited: | Australian Capital Territory (Self-Government)Act1988 (Cth) s 48A |
Cases Cited: | Burow v The Queen [2015] ACTCA 61; 305 FLR 275 |
Parties: | The Queen (Crown) David Harold Eastman (Accused) |
Representation: | Counsel Mr K Lee (Crown) Mr D Ager (Accused) |
| Solicitors DPP (Crown) ACT Legal Aid Office (Accused) | |
File Number: | SCC 111 of 1992 |
Kellam AJ:
I have before me an application for a warrant to be issued for the arrest of (a witness) for the purpose of making him available to give evidence on a voir dire in the course of a pre-trial hearing in this proceeding. The pre-trial hearing is listed to commence on 11 September 2017.
The application for the issue of the warrant is supported by an affidavit affirmed by Lucy Hocking, a solicitor in the employ of the Office of the DPP, on 15 August 2017. This affidavit was filed in court on 15 August 2017. A further affidavit affirmed by Ms Hocking on 15 August 2017 was filed on 16 August 2017.
The affidavits demonstrate that efforts were made to serve a subpoena upon (the witness) since the subpoena was issued on 5 May 2017. Prior to that date, and in the course of the preparation of the eBrief in this matter, police had attended upon (the witness) at his premises at [redacted], and had spoken to him on his mobile phone. However the last time police spoke to (the witness) was 13 January 2015.
The address was confirmed by a search of the electoral roll and used as the address in the subpoena to (the witness). Subsequent to the issue of the subpoena requiring (the witness) to give evidence, it was ascertained on 24 May 2017 that (the witness)’s mobile telephone number was no longer connected. On 25 May 2017 police were informed that (the witness) was no longer at the above referred to address. Enquiries revealed a further address for (the witness) at [redacted]. Attempts were made to serve (the witness) at that address without success. On 5 June 2017 police attended at the [redacted] residence and spoke to a person [redacted], who advised police that (the witness) had ‘taken off somewhere’ and that the last time [they] had seen (the witness) was two days earlier.
On 8 June 2017, ACT Policing Intelligence sought assistance from Victoria Police Intelligence (VicPol) in locating (the witness). On 3 August 2017 VicPol advised the AFP that attempts to serve the subpoena on (the witness) had been unsuccessful. Some days earlier police had obtained an updated list of 44 contact telephone numbers for persons with telephone numbers registered in the same names as (the witness). All numbers were telephoned but no person who answered was able to assist police.
On 14 August 2017 VicPol provided a further telephone number for (the witness) to the AFP which number was telephoned. The person who answered the telephone identified himself as someone other than (the witness). Attempts by the AFP to contact [redacted] also failed as all known telephone numbers previously used by [them] had been discontinued or were no longer accurate.
In the circumstances set out above it is reasonable to infer that (the witness) is seeking to avoid being served with the subpoena. Put another way, I am satisfied on the balance of probabilities that he is doing so (see R v Raymer; Re Papal [1973] VR 843). I accept that the material before me establishes that there is no reasonable basis to expect that (the witness) will voluntarily attend the court to give evidence in September 2017.
The draft warrant produced before me authorizes ‘the police officers of the ACT’ to arrest and bring (the witness) ‘before the court to give evidence’. The reason for the arrest is said to be for ‘the witness to be made available to give evidence in a pre-trial hearing in the matter of R v David Harold Eastman’.
At the hearing of the application I raised with counsel appearing for the DPP the issue of what power the Supreme Court had to issue such a warrant. The submission made is that pursuant to s 20 of the Supreme Court Act 1933 (ACT) (Supreme Court Act), the Court has power to make the orders sought. In this regard, the prosecution relies upon Kelly v Apps [2000] FCA 687; 98 FCR 101 (Kelly v Apps) where, on appeal, it was held that the Supreme Court of the ACT had power to review a costs order made in the ACT Magistrates Court in circumstances whereby such a power was not the subject of a specific provision in the Supreme Court Act. It is appropriate to observe that Mr Lee, who appeared before me on behalf of the DPP, in the course of the hearing advised me very properly that Kelly v Apps had been the subject of criticism in other cases. Subsequently, Mr Lee sent an email to my Associate referring me to the Court of Appeal decision in Burow v The Queen [2015] ACTCA 61; 305 FLR 275 (Burow v The Queen) which decision refers to a number of criticisms of the decision in Kelly v Apps. I shall return to those criticisms later but in Kelly v Apps, and in referring to s 20 of the Supreme Court Act at [104] Wilcox J (with whom the other members of the Court agreed) said:
The words of par (a) of sub (1) are extremely broad ....
The intention of the legislature seems to have been to ensure that the Supreme Court had the ability to right any wrong that might occur in the administration of justice by any court within the Australian Capital Territory.
Further, Wilcox J said at [105]:
If, indeed, it is the case that there is no jurisdiction under s 219B of the Magistrates Court Act, in relation to an order for costs following a dismissal, then this is par excellence an example of the utility of section 20 (1)(a) of the Supreme Court Act.
The submission made before me to the effect that section 20 of the Supreme Court Act is the source of power to issue a warrant for the arrest of (the witness) is a submission that was relied on in R v Stott [2017] ACTSC 126 (Stott). In that case, the DPP sought the issue of a warrant to arrest a witness who at the time could not be located. The circumstances in that case were that the prosecution had subpoenaed a witness in a criminal trial, who appeared on the first day of the trial but thereafter, and before the trial was finished, disappeared. The trial proceeded in the absence of that witness, and the accused was found guilty by the jury. Subsequently, the accused mounted a successful appeal to the verdict and a new trial was ordered. The prosecution then applied for a warrant to arrest the witness who could not be located.
Penfold J gave consideration to the issue of what powers the Supreme Court has in such circumstances to issue the warrant sought by the DPP. First, she observed that there is no clear power in the Supreme Court to do so. Second, she referred to s 63 of the Magistrates Court Act 1930 (ACT) (ACT Magistrates Court Act) which permits the issue of a warrant if a person fails to appear on the subpoena, or after being advised of a requirement to attend in some other way. Penfold J observed further that s 64 of the Magistrates Court Act permits a warrant for arrest to be issued at the ‘first instance’ instead of issuing a subpoena, if it is unlikely that the person will attend the hearing to give evidence unless compelled to do so and it is in the interests of justice. Her Honour observed that s 70A of the Supreme Court Act permits the court to issue a warrant directing a witness to be brought before the court to give evidence in the proceeding if such a witness, who had been served with a subpoena, or was bound by a recognisance, failed to attend as required.
Penfold J also gave consideration at [40] to the possible impact of ss 18 and 30 of the Human Rights Act 2004 (ACT) and expressed the view that:
[i]n the context of express but confined powers in both the Magistrates Court and the Supreme Court to issue a warrant for the arrest of a potential witness who has been subpoenaed or bound over to appear at trial, it would .... be dangerous to infer an inherent and relatively unconfined power in the Court to issue a warrant to a potential witness who has not been subpoenaed or bound over to appear at trial, and who may be in fact entirely unaware of the trial.
Penfold J observed at [41] that such an interpretation was ‘unlikely to be an interpretation compatible with the human rights set out in s 18 of the Human Rights Act.’ That said, Penfold J refrained, in the application before her, from expressing any concluded view on whether or not s 20 of the Supreme Court Act could in another context be read as broadly as contended before her by the prosecution.
I observe that the difficulty identified by Penfold J in Stott is not a difficulty which would arise in Victoria, Queensland, South Australia or the Northern Territory, each of which jurisdictions has legislative provisions enabling the issue of warrants to arrest witnesses who are avoiding service of a subpoena. In Victoria, s 194 of the Evidence Act 2008 (Vic) provides that if a subpoena has been issued for the attendance of a witness, and it is proved that the witness is avoiding service of the subpoena, the court may issue a warrant to apprehend the witness and bring the witness before the court. This reflects the long‑standing power, granted by the pre‑existing s 415(1)(b) of the Crimes Act 1958 (Vic), in the Court to issue a warrant for the arrest of a ‘any person for whose attendance on a trial a subpoena ad testificandum subpoena duces tecum or summons has been issued is keeping out of the way to avoid service thereof’. The legislative provision in the Northern Territory is almost identical to the Victorian provision (see Evidence (National Uniform Legislation) Act (NT) s 194). Likewise, in Queensland, s 593A of the Criminal Code1899 (Qld) provides that if the court is satisfied by evidence on oath that a witness has evaded service of a subpoena or is likely to do so, the court may make an order for the issue of a warrant to bring the witness before the court at a time and place stated in the warrant. In South Australia, s 35(3)(b) of the Supreme Court Act 1935 (SA) provides that if there are grounds for believing that if a subpoena were issued a person would not comply with it, then the Court may issue a warrant to have the person arrested. On the other hand, s 194 of the Evidence Act 1995 (NSW) merely provides for the issue of a warrant to bring the witness before the court in circumstances whereby a witness who is duly bound by a recognisance or has been served with a summons or subpoena fails to appear without just cause or reasonable excuse. The Criminal Procedure Act 1986 (NSW) by s 229 enables the issue of a warrant to arrest a person who has not complied with the requirements of a subpoena. Thus, in this regard there is little uniformity in process between the various States and Territories of Australia.
As pointed out above, s 64 of the ACT Magistrates Court Act gives that court a power to issue a warrant where an intended witness is unlikely to attend the hearing unless compelled. No such express legislative power is granted to the ACT Supreme Court. It is submitted by counsel for the DPP that it is incongruous that the Magistrates Court has a power to issue a warrant to arrest in circumstances whereby the Supreme Court has no such power. It is thus contended on the basis of the decision in Kelly v Apps that s 20 of the Supreme Court Act gives the court an inherent power to issue the warrant sought by the DPP.
As acknowledged by counsel for the DPP, Kelly v Apps has been the subject of judicial criticism by a number of single judges of this court, particularly in relation to the confined issue of whether or not the Supreme Court of the ACT has power in relation to certain aspects of appeal from the Magistrates Court or from such bodies as the Tenancy Tribunal (see Burow v The Queen at [55]). I do not, however, understand Kelly v Apps to have been expressly overturned.
That said however, and notwithstanding Kelly v Apps, the question of whether s 20 of the Supreme Court Act is so wide as to enable me to infer a power to exercise a power of arrest in the absence of statutory authority is not without difficulty. As stated above, there is statutory power pursuant to s 70A of the Supreme Court Act to issue a warrant if a witness served with a subpoena fails to appear to give evidence as required. The very fact of the existence of that section may be read as an implication that absent it, no power would exist to issue a warrant to bring a witness to give evidence in a Supreme Court trial.
Furthermore, it is apparent that s 20 derives from s 48A of the Australian Capital Territory (Self-Government)Act 1988 (Cth) which provides:
The Supreme Court is to have all original and appellate jurisdiction that is necessary for the administration of justice in the Territory.
In Reid v Howard and Ors [1995] HCA 40; 184 CLR 1 the High Court gave consideration to the exercise of the jurisdiction conferred by s 23 of the Supreme Court Act 1970 (NSW) a section which has considerable similarity with s 48A referred to in the preceding paragraph, and which section provides that the Court ‘shall have all jurisdiction which may be necessary for the administration of justice in New South Wales’. In their joint judgment Toohey, Gaudron, McHugh and Gummow JJ stated at [16] that ‘although it has been said that the inherent power of a superior court cannot be restricted to defined and closed categories .... the power is not at large. Nor is the jurisdiction conferred by s 23 of the Supreme Court Act.’ Further, they said at [17]: ‘.... the inherent power and the jurisdiction conferred by s 23 of the Supreme Court Act are to be exercised only as necessary for the administration of justice.’
I observe that the form of Supreme Court warrant which has been provided to me by counsel for the DPP appears to be nearly identical to that described by Penfold J in Stott as having been proffered to her. As her Honour said in that case at [35 - 36]:
35. In effect, the prosecutor has submitted that a warrant may be issued for the arrest of a witness who has not been served with a subpoena, or otherwise notified of a requirement to attend court, if:
(a) the subpoena has been issued;
(b) the party calling the witness has taken reasonably practicable steps to contact and locate the witness;
(c) the party calling the witness has not been able to serve the subpoena despite making reasonable attempts; and
(d) it is in the interests of justice to issue the warrant.
36. The only thing missing is the legislative provision to the effect that, when those requirements are satisfied, a warrant may be issued for the arrest of a person who has not been notified of his or her obligation to attend court. The prosecutor should perhaps be commended for his ingenuity, but prosecutorial ingenuity is not a substitute for a proper source of jurisdiction.
Conclusion
As in the case of Stott, the application made before me for the issue of a warrant to arrest (the witness) was a brief oral submission. No considered submission or consideration of relevant authority (save for the briefest reference to Kelly v Apps) was advanced before me in support of the contention that s 20 of the Supreme Court Act provides a basis for inferring a power to issue a warrant of arrest in the circumstances of this case. In the absence of detailed submissions and in circumstances whereby I have considerable doubt as to whether I have power to issue the warrant sought by the DPP, I do not consider that it is appropriate for the warrant to issue.
Further, in the absence of such submissions and detailed argument as to what, if any, authority there is for the contention that the issue of a warrant of the nature sought is empowered by s 20 of the ACT Supreme Court Act, like Penfold J, I do not consider it appropriate for me to express any concluded view that the power asserted by the DPP does not exist.
Other Matters
There are a number of other matters which would concern me about the nature of the remedy sought in this application. Based on the information before me, it is apparent that if the witness can be found, that the warrant to arrest is likely to be executed outside of the ACT and possibly in Victoria or Queensland. In the absence of directions as to bail being included in the warrant there would be a distinct possibility that if found and arrested the witness might be detained for a considerable period of time. Furthermore, issues may arise as to whether an interstate bail justice would have power to grant bail, upon the witness entering into a recognisance to appear before an ACT court. Would the witness need to be extradited to the ACT for appearance at the trial if bail was not granted? It may be that these concerns are not justified, but I would require detailed submissions about them before I would be prepared to make an order for arrest, even if I was satisfied that I had the power to do so.
In my view, the AFP should continue their efforts to locate the witness concerned. If his whereabouts can be ascertained there is always the option of obtaining an order for short service of a subpoena.
In the circumstances I dismiss the application made on behalf of the DPP and dated 15 August 2017.
The doubts that have arisen in both the decision in Stott and in the application before me clearly demonstrate a legislative anomaly that needs to be addressed.
| I certify that the preceding twenty-six [26] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Kellam. Associate: Date: 18 August 2017 |
0
3
12