R v Salmat Document Management Solutions Pty Ltd

Case [2005] WASC 232


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   R -v- SALMAT DOCUMENT MANAGEMENT SOLUTIONS PTY LTD & ORS [2005] WASC 232

CORAM:   MCKECHNIE J

HEARD:   19 AUGUST 2005

DELIVERED          :   28 OCTOBER 2005

FILE NO/S:   INS 16 of 2005

BETWEEN:   THE QUEEN

Applicant

AND

SALMAT DOCUMENT MANAGEMENT SOLUTIONS PTY LTD
MATTHEW JAMES HALL
NICHOLAS JOHN ALDRIDGE
PATRICK JOSEPH WARD
Respondents

Catchwords:

Criminal law and procedure - Witness summons to produce - Whether DPP has power to act for witness who seeks the cancellation of the summons - Incidental power of DPP - Witness summons - Disclosure of documents - Claim for public interest immunity - Principles to be considered

Legislation:

Director of Public Prosecutions Act 1983 (Cth), s 6(1)(a)

Criminal Procedure Act 2004 (WA)

Result:

DPP has no power to act for parties to witness summons
Documents to be inspected with limitation

Category:    B

Representation:

Counsel:

Applicant:     Mr J D Allanson & Mr D L S Davidson

First-Named Respondent     :     Mr M B J Lee

Second-Named Respondent :     Mr M E Dean SC

Third-Named Respondent    :     Mr A J Glynn SC & Mr C J E Eberhardt

Fourth-Named Respondent  :     Mr A J Howard QC

Solicitors:

Applicant:     Commonwealth Director of Public Prosecutions

First-Named Respondent     :     Abbott Tout

Second-Named Respondent :     Dwyer Durack

Third-Named Respondent    :     Robertson O'Gorman

Fourth-Named Respondent  :     Galbally Rolfe

Case(s) referred to in judgment(s):

Air Canada v Secretary of State for Trade [1983] 2 AC 394

Alister v The Queen (1984) 154 CLR 404

Burmah Oil Co Ltd v Bank of England [1980] AC 1090

Button v The Queen (2002) 25 WAR 382

Carter v Hayes SM (1994) 61 SASR 451

Connell v The Queen (No 6) (1994) 12 WAR 133

Dietrich v The Queen (1992) 177 CLR 292

Director of Public Prosecutions v Australian Broadcasting Corporation & Ors (1987) 7 NSWLR 588

Easterday v The Queen [2003] WASCA 69; (2003) 143 A Crim R 154

Ex parte Roddan (1995) 14 WAR 279

Forbes v Australian Federal Police (Commonwealth of Australia) [2004] FCAFC 95

Health Insurance Commission v Freeman (1998) FCR 544

In re Judiciary and Navigation Acts (1921) 29 CLR 257

Jago v District Court of New South Wales (1989) 168 CLR 23

Maddison v Goldrick (1976) 1 NSWLR 651

R v Brown (Winston) (1994) 1 WLR 1599

R v Pearce (1992) 7 WAR 395

R v Stinchcombe (1991) 3 SCR 326

R v Taillefer; R v Duguay [2003] SCC 70

Ran v The Queen (1996) 16 WAR 447

Salmat Document Management Solutions Pty Ltd & Ors v The Queen [2004] WASC 268

Case(s) also cited:

Cunliffe v The Commonwealth (1994) 182 CLR 272

Dunesky & Bay Wool Pty Ltd v Elder (1992) 35 FCR 429

Freeman v Health Insurance Commission (1997) 78 FCR 91

Grofam v ANZ (1993) 43 FCR 408

Grofam v ANZ (1993) 45 FCR 445

Leask v The Commonwealth (1996) 187 CLR 579

MCKECHNIE J:

Introduction

  1. This matter has become rather messy.  Some issues that were live and…

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AGLC
R v Salmat Document Management Solutions Pty Ltd [2005] WASC 232
Case
[2005] WASC 232
Decision Date

CaseChat Overview and Summary

Salmat Document Management Solutions Pty Ltd was the defendant in a criminal case where the dispute revolved around the validity and scope of a witness summons issued to them. The case was heard in a court of law. The key legal issues before the court were whether the Director of Public Prosecutions (DPP) had the authority to act on behalf of a witness who sought the cancellation of a witness summons, and whether this action fell within the incidental powers of the DPP.

The court examined the DPP's incidental powers, referencing previous cases such as Director of Public Prosecutions v Australian Broadcasting Corporation & Ors, where the court established that the DPP's incidental powers extend only to actions that are necessary for the exercise of their primary statutory functions. The court considered that the DPP's power to act on behalf of a third party, in this case, a witness, was not an incident of the power to conduct a prosecution. Furthermore, the court held that it was not necessary or convenient for the DPP to act for a party in order to make submissions on the return of a subpoena, as the prosecution itself is a party to the criminal proceedings and the DPP cannot be excluded from any part of those proceedings.

After considering the relevant principles and legal precedents, the court concluded that the DPP did not have the power to apply to set aside a witness summons on behalf of a witness. The court's decision was grounded in the understanding that the DPP's role is fundamentally prosecutorial and that acting for a third party, whose interest is limited to the production of documents, did not fall within the incidental powers conferred by statute. The court's reasoning was that the DPP's power to act on behalf of a witness was not an incident of the power to conduct a prosecution and did not extend to making submissions on a witness summons issued to a non-party.

The court's final orders affirmed that the DPP did not have the authority to act on behalf of a witness seeking to set aside a witness summons, thereby clarifying the scope of the DPP's incidental powers in relation to witness summonses in criminal proceedings.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The incidental power of the DPP was examined in Director of Public Prosecutions v Australian Broadcasting Corporation & Ors (1987) 7 NSWLR 588. At 597 the Court said:"Section 6(1)(m)(which it would seem gives a permission to the DPP rather than confer a power upon him) and s 6(1)(n) do not contain a special and a general power in the sense referred to in those decisions. They contain a special power and the power to do what is incidental to that power. It is of the essence of an incidental power - whether implied or expressly conferred - that it extends the scope of the power to which it is incidental." The Court held that the bringing of contempt proceedings was an exercise of an incidental power to bring prosecutions on indictment. The contempt proceedings were necessary to protect the administration of justice in respect of the indictable proceedings. A similar view was expressed in R v Pearce (1992) 7 WAR 395 at 409. In Health Insurance Commission v Freeman (1998) FCR 544 the Court considered the incidental power and concluded that provided there is some nexus between an investigation being conducted by a Commonwealth authority and a statutory function of the DPP, the DPP may give legal advice. A right to a fair trial is a central pillar of our criminal justice system: Dietrich v The Queen (1992) 177 CLR 292 at 298. It is a necessary incident of the DPP's power to bring and conduct prosecutions on indictment that so far as is possible a trial is conducted fairly. On occasions this may mean that the DPP will join with defence in opposing an application to set aside a subpoena issued to a person who is not party to the criminal proceedings. This fact alone suggests that the power to act on behalf of a third party is not an incident of the power to conduct a prosecution. Nor is it necessary or convenient for the DPP to act for a party in order to make submissions on the return of a subpoena. The prosecution is a party to the criminal proceedings and the DPP cannot be excluded from any part of those proceedings. By way of analogy: see Ex parte Roddan (1995) 14 WAR 279. A Commonwealth prosecution on indictment is carried on in a State court according to the procedure set out in the laws of that State: Judiciary Act 1903 (Cth) s 68. The procedure for the issuing of a witness summons and the cancelling of a witness summons is the Criminal Procedure Act 2004 (WA). A witness or a party may apply to have a witness summons cancelled: s 166. To protect its interests in a prosecution by making submissions on a witness summons it is unnecessary for the DPP to exercise any incidental power. Of course the Director of Public Prosecutions Act is a Commonwealth statute of general application. The incidental power in s 6(1)(n) cannot be interpreted on the basis of legislation in one State that confers on parties certain procedural rights. I do not make this error. In an extension of the reasoning in Ex parte Roddan, the DPP has power to apply to set aside a witness summons if that summons was perceived as interfering with the prospects of a fair trial. This power arises because of the role of the DPP as prosecutor. There is a distinction between intervening as a party to litigation and acting for a stranger whose only interest is limited to the production of documents.