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
MCKECHNIE J:
Introduction
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
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.