R v Keogh - [2013] SASCFC 74

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Application)
R v KEOGH
[2013] SASCFC 74
Judgment of The Honourable Justice Nicholson
6 August 2013
CRIMINAL LAW - PROCEDURE - MISCELLANEOUS POWERS OF COURTS AND JUDGES - GENERALLY
Application for access to a document exhibited to an affidavit filed at same time and in support of a notice of appeal and an application for permission to appeal against conviction - application of s 131(1)(aa) of Supreme Court Act 1935 - consideration of whether or not the document in question fell within the term "process" as used in s 131(1)(aa).
Held: the document to which access is sought does not fall within the term "process" in s 131(1)(aa).
Criminal Law Consolidation Act 1935 (SA) s 353A; Supreme Court Act 1935 (SA) s 131; Supreme Court Civil Rules 2006 (SA) r 61, referred to.
R v Foreman (1996) 186 LSJS 190; Jackson & Ors v Johnson & Ors & Scott v Johnson & Ors [2010] SASC 133; John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512; Buyquick.com Ltd v Foxgold Pty Ltd [2004] WASC 180; Corlette Pty Ltd v The Shell Company of Australia Ltd [1999] WASC 24, considered.

R v KEOGH
[2013] SASCFC 74
NICHOLSON J.

Henry Vincent Keogh was convicted of murder in 1995 and sentenced to life imprisonment with a non‑parole period of 25 years. Until recently, and apart from any right to petition for Her Majesty’s mercy pursuant to s 369 of the Criminal Law Consolidation Act 1935 (SA) (CLCA),[1] Mr Keogh had exhausted all avenues of appeal. However, earlier this year the CLCA was amended by the insertion of a new provision, s 353A, which provides that the Full Court may hear a second or subsequent appeal against conviction in defined circumstances. Mr Keogh has recently filed in this Court a Notice of Appeal which includes an Application for Permission to Appeal against his conviction (subsequently amended but in a manner not material to these reasons for decision) in reliance on such rights as are conferred by this new provision.
[1] Steps to implement this procedure have in fact been undertaken by those representing Mr Keogh and are in progress.
By s 353A(2) a convicted person may only appeal under this section with the permission of the Full Court. I am the Judge who has been assigned to manage Mr Keogh’s application for permission to appeal. The proceedings are still at a very early stage and any argument to be had on the question of permission has not yet been heard.
Strictly, the Notice of Appeal will have no work to do unless and until permission to appeal were to be granted. The composite document in its present form contains more detail than is usual in a Notice of Appeal against conviction for a criminal offence typically filed in this Court. It contains the single ground of appeal, in paragraph 15, that there was a substantial miscarriage of justice but goes on to particularise that ground in some detail. In addition, the Notice of Appeal sets out, in paragraph 16, grounds upon which permission to appeal against conviction is sought. The central ground relied on, picking up on the requirement in s 353A, is that “there is fresh and compelling evidence within the meaning of that term within s 353A ... as set out in the annexure RR1 to the Richards affidavit ...”.
Filed at the same time as, and in support of, the Notice of Appeal is an affidavit sworn on 20 June 2013 by Mr Keogh’s solicitor (the Richards affidavit). Exhibited to that affidavit is a large number of documents (more than 45) that those representing Mr Keogh rely upon in support of the argument that he will be able to adduce fresh and compelling evidence at an appeal. One of those documents is described and identified in subparagraph 16.1.20 of the Notice of Appeal in the following terms:
Report of Professor Vernon-Roberts to Mr Kourakis QC (as he then was) re causes of death dated 22.11.04, discovered 14.2.13.
Subsection 131(1) of the Supreme Court Act 1935 (SA) entitles a member of the public to inspect or obtain a copy of certain documents in the Court’s control and related to proceedings before it. It is to be noted that subs 131(1) speaks in mandatory terms “Subject to this section, the Court must, on application by any member of the public, allow the applicant to inspect or obtain a copy of” – thereafter various categories of documents are described.[2] By contrast, pursuant to s 131(2) a member of the public is only entitled to inspect or obtain a copy of the type of material referred to in that subsection “with the permission of the Court”.
[2] I do not need to consider in these reasons the extent to which, if at all, the right under s 131(1) might be subject to any suppression order under s 69A of the Evidence Act 1929, see R v Foreman (1996) 186 LSJS 190 or the extent to which any inherent jurisdiction of the Court to prevent a likely interference with the proper administration of justice might serve to qualify the s 131(1) entitlement.
By s 131(1)(aa) the material which the Court “must, on application by any member of the public”, allow inspection or copying of includes:
Any process relating to proceedings and forming part of the Court’s records.
An application has been made by the firm of solicitors, Kelly and Co, on behalf of its client, Channel Seven, for it to be allowed to inspect or obtain a copy of the document referred to in paragraph 16.1.20 of the Notice of Appeal. It has been submitted that the entitlement arises, as of right, because this document forms part of the Notice of Appeal and is part of “the process” relating to the Keogh proceedings and forming part of the Court’s records.
I have already given permission for various members of the public (essentially media organisations) to inspect and copy the Notice of Appeal itself on the basis that I was satisfied that this document falls within s 131(1)(aa).[3] However, before making a decision with respect to the application concerning the document referred to in paragraph 16.1.20 and forming part of the Richards affidavit, I directed that Kelly & Co together with the Director of Public Prosecutions and those representing Mr Keogh should be given an opportunity to be heard.
[3] Cf; Jackson & Ors v Johnson & Ors & Scott v Johnson & Ors [2010] SASC 133.
When the application for permission to appeal was listed before me for its first directions hearing I heard from Mr Campbell of Kelly & Co, Mr Press on behalf of the DPP and Mrs Shaw QC on behalf of Mr Keogh in relation to this issue. Mrs Shaw indicated that her client took no position on the matter. Mr Press made brief submissions to the effect that the document sought did not fall within s 131(1)(aa) on its proper construction and also to the effect that, to the extent that any discretionary release of the document might be considered, any such release would be premature at this stage.
Mr Campbell submitted to the effect that because the Notice of Appeal expressly referred to a series of identified documents as exhibited to the solicitor’s affidavit, filed in support, the grounds effectively comprised this series of documents. In this way, submitted Mr Campbell, the particular report to which access is sought formed part of the “process relating to proceedings and forming part of the Court’s records” and thus fell within s 131(1)(aa).
Reliance was placed on the decision of White J in Jackson & Ors v Johnson & Ors & Scott v Johnson & Ors.[4] In that decision his Honour considered the question of what might constitute “process” for the purposes of s 131(1)(aa). His Honour held that a particular statement of claim filed in the civil jurisdiction that was before him fell within the subsection and was a document that the public was entitled, as of right, to inspect and copy. In this respect, the question before his Honour was whether the word “process” captured only the summons or equivalent originating process by which a defendant is brought before a court or whether it also captured the statement of claim filed with and in support of the summons. His Honour considered at some length the meaning of the word “process” as used in the context of legal proceedings. His Honour observed that it was open to be given a narrow or a very wide meaning.[5]
[4]    [2010] SASC 133.
[5]    At [18]-[19].
The word “process” has a variety of meanings. The diversity of meanings of the word when used in relation to legal proceedings alone is seen in the Macquarie Dictionary definition:
3      Law a. the summons, mandate, or writ by which a defendant or thing is brought before the court for litigation. b. the total of such summoning writs. c. the whole course of the proceedings in an action at law.
On this definition, “process” may at its narrowest be the summons or equivalent by which a defendant is brought before a court. At its widest, it may encompass the whole course of a legal proceeding. This broad meaning is inapt in relation to s 131(1)(aa) as it is plain that it contemplates a document which is capable of being inspected and copied, rather than a course of proceeding.
In ordinary usage, the word “process” in the context of legal proceedings is commonly understood as a reference to the documents by which a prosecutor or litigant invokes the court’s jurisdiction, or by which a person compels the attendance of a person or the production of a thing at court, to interlocutory applications in the course of proceedings, and to documents embodying an order made by the court which will be served on a person or executed in some way. See for example the discussion of the word “process” by Gibbs J in Boilermakers’ Society of Australia v Brisbane Welding Works Pty Ltd.[6] The word “process” is not usually understood to encompass all documents, of whatever nature, filed by the parties in the proceedings.
White J then referred to a number of other considerations relevant to the construction of the word “process” as used in s 131(1)(aa) including the “open justice principle” and said this.[7]
I agree, however, that the open justice principle suggests that s 131(1)(aa) should not be construed narrowly, and that it would be consistent with the application of that principle for members of the public to know of the allegations made by litigants in proceedings before the Court. This is especially so as it will commonly be difficult for members of the public to be able to follow and understand proceedings heard in open court without knowledge of the issues which have been raised for the Court’s determination in those proceedings. That knowledge can usually be obtained from the pleadings. Access to the pleadings may be necessary in order for there to be fair and accurate reporting of the proceedings in the Court.
On the other hand, it has been said that the principle of open justice in relation to access to documents applies only when a document has been deployed in a hearing in a court, that is, in a hearing conducted by a judicial officer. Thus, in John Fairfax Publications Pty Ltd v Ryde Local Court, Spigelman CJ said:
The principle of open justice is not engaged at the time of the filing of proceedings. It is only when relevant material is used in court that it becomes relevant. As Slicer J put it in R v Clerk of Petty Sessions, Court of Petty Sessions Hobart; ex parte Davies Bros Ltd:
“… The making of a complaint, without more, is no more than a statement by a party (often the state) that it wishes to have a particular grievance (public or private) determined by a court. … The making of a complaint does not attract the requirement of ‘open justice’ unless and until it becomes an issue between the parties.”[8] [Citation omitted]
[6] [1965] Qd R 598 at 605-6.
[7]    At [27]-[28].
[8] [2005] NSWCA 101 at [65]; (2005) 62 NSWLR 512 at 526.
White J arrived at the following conclusions.[9]
Although the matter is not free from doubt, I favour giving the expression “any process relating to proceedings” the meaning which it has in ordinary usage. That is, I consider the expression to be a reference to the documents by which a litigant invokes a court’s jurisdiction when commencing an action; interlocutory applications; the documents by which a person compels the attendance of a person or the production of a thing at court; and documents embodying a court order.
On that understanding, a statement of claim may in some circumstances come within the description of “any process relating to proceedings”. An examination of the circumstances of each statement of claim will indicate whether it formed part of the document or documents by which the Court’s jurisdiction was invoked. Those circumstances will include any temporal or physical connection between the commencement of the proceedings and the filing of the statement of claim, and the role of the statement of claim in the invoking of the Court’s jurisdiction. Apart possibly from those cases in which a defendant includes a counterclaim in a defence, it appears unlikely that the expression “process relating to proceedings” includes a defence or subsequent pleading.
This construction may not give full effect to all the elements of the open justice principle to which I referred earlier, but that is the effect of the words used by the Parliament. It is also to be expected that the open justice principle would be a significant factor in the consideration of any request under s 131(2) for permission to inspect or copy a pleading, although regard would have to be had to the observations of Spigelman CJ in John Fairfax Publications quoted above.
[9] At [30]-[32].
As can be seen, White J was not called upon to consider the issue that is before me. However, and as already indicated, I am satisfied that the reasoning of White J supports my earlier decision that the Notice of Appeal presently under consideration falls within s 131(1)(aa). Mr Campbell submitted that just as White J was persuaded by, amongst other things, the temporal and physical connection between the summons and the statement of claim in the proceedings before him so as to reach a conclusion that the statement of claim was part of the “process” used to invoke the Court’s jurisdiction, similarly here, the solicitor’s affidavit was filed at the same time and by reference has been incorporated within the Notice of Appeal.
Whilst I agree that temporal or physical connection might be afforded some weight in appropriate circumstances I take the view that this, of itself, in this case, adds little. In this context, it is pertinent to note a fundamental difference between a statement of claim and a document such as the solicitor’s affidavit in this case. The statement of claim makes allegations which its proponent ultimately, if the matter proceeds, will be called upon to prove by admissible evidence. In this sense it can be seen as a very important adjunct to the originating process (the summons) which compels a defendant party to come to court. However, the solicitor’s affidavit (at least insofar as the exhibited documents are concerned) purports to set out the nature of the evidence itself that will be relied upon when the leave application, any subsequent appeal and perhaps, in time, any new trial were to be argued.
Mr Campbell submitted that the Notice of Appeal relies on the affidavit, that it depends on the affidavit to have any sense and that the affidavit has no role or utility without the Notice of Appeal. With respect, this overstates the position. There would have been nothing to stop Mr Keogh filing the Notice of Appeal as a stand alone document, that is, without the solicitor’s affidavit. It still would have served as an originating process compelling the attendance of the respondent. In time a mechanism would have to have been put in place to ensure appropriate disclosure to the respondent of the materials to be relied upon once the matter came to be argued. As Mrs Shaw indicated to the Court, the affidavit was filed as a matter of convenience to the parties and to the Court.
Mr Campbell conceded that the document in question did not yet have the status of evidence received in Court. However, he was not relying upon its status in that sense although he submitted that it was inevitable that it would become part of the Court record as evidence at some stage and that it was a document not likely to be controversial in terms of its admissibility. This may or may not be so. However, the submission does not assist me in determining whether the documents sought should be regarded as part of the “process” filed by the applicant for the purposes of s 131(1)(aa).
Mr Campbell also drew an analogy with the civil rule of practice, available in most jurisdictions in some form or another,[10] to the effect that where a party files a pleading which refers to a document the filing party must provide a copy of the document to the other party on request. I do not find this analogy of particular assistance. It is part of the disclosure regime that is imposed on the parties to civil litigation to ensure that each party has fair notice of the case that the other seeks to bring. I accept there are statements in the authorities to the effect that a rationale for the rule is that any reference to a document in a pleading is to have the same effect as if the document was fully set out in the pleading.[11] With respect, I doubt that it is necessary to characterise a rationale for the rule in this way. However, and in any event, such a rationale arises in a context quite far removed from the present and does not assist me with the particular question of construction that I have to decide.
[10] See for example our Supreme Court Civil Rules 6R 61.
[11] The two cases cited to me in this respect were Buyquick.com Ltd v Foxgold Pty Ltd [2004] WASC 180 and Corlette Pty Ltd v The Shell Company of Australia Ltd [1999] WASC 24.
Mr Press, on behalf of the respondent, made submissions to the effect that the solicitor’s affidavit should not be considered as part of the initiating process which invokes the jurisdiction of the Court. Mr Press suggested, as a comparator, the situation that occurs with the filing of an Information for a major indictable charge in the Magistrates Court. It is the filing of the Information which invokes the jurisdiction of the Court. However, it then becomes necessary in accordance with the Rules for declarations to be filed in support of the case put forward by the prosecution. There are specific rules in place intended to ensure that all necessary documentation is provided to the Court. As Mr Press submitted, in the absence of such declarations being filed there will be no case to answer and the Information will be dismissed. However, the jurisdiction of the Court will have been invoked by the “process” comprising the Information.
The present matter raises a question of statutory construction. Section 131(1)(aa) must be construed and its ambit determined in the context of s 131, in particular subs (1) and (2) as a whole. It is helpful to set out subs 131(1) and (2).
(1)Subject to this section, the court must, on application by any member of the public, allow the applicant to inspect or obtain a copy of—
(aa)   any process relating to proceedings and forming part of the court's records;
(a)     a transcript of evidence taken by the court in any proceedings;
(b)     any documentary material admitted into evidence in any proceedings;
(c)     a transcript of submissions by counsel;
(d)     a transcript of the judge's summing up or directions to the jury, in a trial by jury;
(e)     a transcript of reasons for judgment (including remarks made by the court on passing sentence);
(f)    a judgment or order given or made by the court.
(2)A member of the public may inspect or obtain a copy of the following material only with the permission of the court:
(a)     material that was not taken or received in open court;
(b)     material that the court has suppressed from publication;
(ba)   sensitive material in the custody of the court;
(c)     material placed before the court during sentencing proceedings;
(d)     documentary material filed in connection with a preliminary examination;
(e)     a transcript of any oral evidence taken at a preliminary examination;
(f)     a photograph, slide, film, video tape, audio tape or other form of recording from which a visual image or sound can be produced;
(fa)    a report prepared to assist the court in determining a person's eligibility for, or progress in, an intervention program (within the meaning of the Bail Act 1985 or the Criminal Law (Sentencing) Act 1988 or the Intervention Orders (Prevention of Abuse) Act 2009);
(g)     material of a class prescribed by the regulations.

There is a large number of categories of documents specifically referred to in subs 131(1) and (2) some of which can be accessed as of right and others only with permission. In my view, one ought to be careful not to give the word “process’ such an expansive meaning as to embrace documents or categories of documents that are otherwise specifically dealt with. The fact that the legislature has specifically dealt with other categories of documents is an indicator to me that those categories would not ordinarily be seen also to fall within the word “process”. Whether or not Spigelman CJ in John Fairfax Publications was correct to observe that the principle of open justice is not engaged at the time of filing proceedings, it does, in my view, carry less weight at this early time as can be inferred from the terms of s 131 itself.
The “open justice principle” finds expression in the way in which Parliament has dealt with the various categories of documents in s 131. For example, Parliament has directed, as part of its expression of the open justice principle, that “any documentary material admitted into evidence in any proceedings”[12] is to be, by right, made available to the public.
[12] Section 131(1)(b) my emphasis.
The exhibits to the solicitor’s affidavit might come to be deployed at some stage and in some way as evidence. It may be, that in time, the document to which access is presently sought or evidence concerning that document might fall to be considered in the context of one or more of the categories specifically described in the paragraphs of s 131(1) or the paragraphs of s 131(2). In my view, it was the intention of the legislature, that material in the nature of that exhibited to the solicitor’s affidavit is to be released to the public, only by having regard to the specific category within which it might fall. In particular and by way of example, it does not yet satisfy the description of documentary material admitted into evidence.
With respect, Mr Campbell has argued for what, to my mind, is an unnaturally expansive construction or interpretation of the word “process”. The essence of White J’s reasoning is that the notion of “process” here is cognate with the notion of a document or documents by which a litigant invokes the Court’s jurisdiction. It is on this understanding that, in some circumstances, a statement of claim might come within the description of “any process relating to proceedings”. In no practical sense does Mr Keogh rely upon the solicitor’s affidavit to invoke the jurisdiction of the Court. That has been invoked by the filing of his Notice of Appeal. That jurisdiction would have been invoked in any event even if the solicitor’s affidavit had not been filed. To include the document in paragraph 16.1.20, provided as a matter of convenience to the parties and the Court, within such an expanded notion of “process” for the purposes of s 131(1)(aa) risks undermining the legislative intention in setting out specific categories of documentation which categories govern the circumstances and the point in time in the conduct of proceedings when a document is to be or might be provided to the public.
For these reasons I rule that the document referred to in sub‑paragraph 16.1.20 of the Notice of Appeal does not fall within s 131(1)(aa). Mr Campbell’s client is not entitled, at this time, pursuant to s 131(1)(aa), to inspect and obtain a copy of the document.