R v Tennent; ex parte Henderson; Henderson v Fehlandt
[2001] TASSC 14
•26 February 2001
[2001] TASSC 14
CITATION: R v Tennent; ex parte Henderson
Henderson v Fehlandt & Ors [2001] TASSC 14
PARTIES: R
v
TENNENT, S E
HENDERSON, Michael John; ex parte
HENDERSON, Michael John
v
FEHLANDT, Craig Andrew
BROWN, Graeme MaxwellMcDONALD, Scott Raymond
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
APPELLATE
FILE NO/S: M303/2000
LCA75/2000
DELIVERED ON: 26 February 2001
DELIVERED AT: Hobart
HEARING DATES: 13 February 2001
JUDGMENT OF: Blow J
CATCHWORDS:
Criminal Law - Jurisdiction, practice and procedure - Prosecution - Committal for trial by justice or coroner - Powers and duties of magistrate or coroner - Production and serving of documents - Before election pursuant to Justices Act 1959 (Tas), s56A(6) - Procedural fairness.
R v Wesley 27/1990; R v Charlton [1972] VR 758; Clarkson v DPP [1990] VR 745, referred to.
Aust Dig Criminal Law [665]
REPRESENTATION:
Counsel:
Prosecutor M303/2000 and Applicant LCA75/2000: C J Gunson
Defendant, C A Fehlandt, G M Brown
and S R McDonald (complainants) M303/2000
and Respondents LCA75/2000: T J Ellis
Solicitors:
Prosecutor M303/2000 and Applicant LCA75/2000: Abetz, Curtis & Worsley
Defendant, C A Fehlandt, G M Brown
and S R McDonald (complainants) M303/2000
and Respondents LCA75/2000: Director of Public Prosecutions
Judgment Number: [2001] TASSC 14
Number of Paragraphs: 16
Serial No 14/2001
File Nos M303/2000LCA75/2000
THE QUEEN v S E TENNENT; ex parte MICHAEL JOHN HENDERSON
MICHAEL JOHN HENDERSON v CRAIG ANDREW FEHLANDT,
GRAEME MAXWELL BROWN, SCOTT RAYMOND McDONALD
REASONS FOR JUDGMENT BLOW J
26 February 2001
There are two proceedings before the Court: proceedings for a writ of prohibition and a motion to review pursuant to the Justices Act 1959, s107. The prosecutor/applicant ("the applicant") has been charged in the Magistrates Court on six complaints with a total of 396 charges under the Criminal Code. These comprise 41 charges of dishonestly acquiring a financial advantage contrary to s252A, involving sums totalling $801,424; five charges under s299 of attempting to dishonestly acquire a financial advantage, involving amounts totalling $98,246; 175 counts of forgery contrary to s278; and 175 counts of uttering contrary to s279. Pleas of not guilty have been entered to all charges, but the applicant has not yet made any election pursuant to the Justices Act, s56A(6).
The charges of dishonestly acquiring a financial advantage each allege that the applicant acquired between $18,000 and $20,000 for himself from an entity described as "IBM Global Financing" by providing false details in a credit/lease application. Each charge refers to such an application in the name of a different individual. The applicant's solicitors have been provided with copies of witness statements, purportedly made by a number of those individuals, each saying that he or she has seen a credit/lease agreement purportedly signed by him or her and the applicant, that he or she did not sign that document, that he or she has been shown other documents or copies of documents purportedly signed by him or her, and that he or she did not sign them either. The applicant's solicitors wrote to the officer in charge of South Regional Prosecution Services in the Tasmania Police on 31 January 2000 requesting copies of each of the documents referred to in ten such witness statements, and copies of the following:
"1 Statements taken from witnesses or potential witnesses (excluding those already provided to us and listed above) including proofs of evidence of investigating police officers.
2 All records or notes made by police officers involved in contacting, interviewing or otherwise approaching witnesses or potential witnesses including records of conversation, telephone notes etc.
3 All documents relating to the issuing and execution of any search warrants.
4 All documents seized pursuant to search warrants including, if applicable, documents in electronic form.
5 All documents relating to the issuing and execution of any warrants pursuant to the Listening Devices Act 1991 or the Telecommunications (Interception) Act 1979 including all records and/or transcripts of all telephone communications interceptions whether in written form or otherwise.
6 All investigation running sheets.
7 Custody records and documents held pursuant to the Criminal Law (Detention and Interrogation) Act 1995.
8 All documents relating to surveillance of the accused or any other suspects including surveillance logs, photographs and video recordings as applicable.
9 All documents whether in electronic form or otherwise obtained in relation to this matter from any other source including but not limited to IBM, IBM Global Financing and any financial institution.
10 All exhibit sheets and/or registers including chain of custody documentation referable to each exhibit that has come into the possession of Tasmania Police at any time referable to these matters.
11 All entries made in any notebooks of officers of Tasmania Police relating to the investigation of these matters.
12 The criminal records of all prosecution witnesses.
13 Any other document not otherwise specified above relating to the investigation of these matters."
With minor exceptions, copies of these documents have not been provided.
The documents of which copies were not provided were the subject of the unsuccessful submissions made by the applicant's counsel to a magistrate (the defendant in the prohibition proceedings) on 25 August 2000. He submitted that she should order the prosecution to provide him free of charge with copies of the requested documents, and further submitted that the applicant should not be required to make an election pursuant to s56A(6) until such documents had been provided. On 18 September 2000, the learned magistrate declined to order the production of those documents, and refused to adjourn the proceedings for the purpose of them being produced before the applicant made his election. Those rulings are challenged both in the prohibition proceedings and by the motion to review. In the prohibition proceedings, on 23 October 2000, Slicer J made a general order for the learned magistrate to show cause why a writ of prohibition should not issue. A notice of submission has been filed on her behalf pursuant to the Supreme Court Rules 2000, r626(3). However the granting of prerogative relief is opposed by the complainants in the lower court proceedings, who are also the respondents to the motion to review. I will refer to them as "the complainants".
Essentially it is contended on behalf of the applicant that the learned magistrate's duty to afford him procedural fairness required her to order the production of the relevant documents, and required her not to proceed so far as to require a s56A(6) election unless and until the documents were provided. It is said that she could have dismissed the complaints, or adjourned them, perhaps adjourning them sine die. It was submitted on behalf of the complainants that the learned magistrate had no power to order the production of the relevant documents, and that her duty to afford the applicant procedural fairness did not require her to grant him an adjournment or to take any other steps in consequence of copies of those documents not having been provided to him or his solicitors.
Apparently a Mr Miller appeared for the complainants on 29 February 2000 in the Magistrates Court, and said that the applicant's solicitors would be given access to certain police files. I infer this from an assertion to that effect in a letter written by the applicant's solicitors on 23 March 2000. It seems that no inspection of the files in question ever took place. If any checking of documents or analysis of documents by the applicant's legal advisers was required, it seems to me that the most convenient course by far was for them to be provided with copies of the documents. If the charges against the applicant are proceeded with, his solicitors will no doubt be provided with copies of all the documentary evidence intended to be relied upon by the Crown at some stage prior to his trial. It seems to me that there is little point in the Crown or the police refusing to provide copies of such documents free of charge at this stage, but the proceedings before me have to be decided on the basis of legal rights and obligations, rather than what I consider to be desirable or appropriate policies.
It is common ground that the applicant is, and at all material times was, entitled to obtain copies of the documents pursuant to the Freedom of Information Act 1991 ("the FOI Act"), subject to the payment of appropriate fees. Such fees are prescribed by the Freedom of Information (Fees) Regulations 1992. It was not submitted to the learned magistrate, nor was there any evidence, that the applicant did not have enough money to obtain the documents pursuant to that Act.
The only statutory obligation as to the disclosure of documents to an accused person is that imposed by the Criminal Code, s328, which reads as follows:
"Upon the application of a person against whom an indictment has been filed the Crown law officer filing such indictment shall supply such person, 2 clear days at least before the day of trial, with a copy of the indictment and a copy of the jury panel free of charge; and shall permit such person, upon his trial, to inspect, free of charge, all depositions taken against him and forwarded to the Attorney-General."
As Zeeman J observed in R v Wesley 27/1990, that section can no longer have any practical application since depositions are now required to be forwarded to the Director of Public Prosecutions and not to the Attorney-General: Justices Rules 1976, r51(1). The only relevant legal rights of an accused person are therefore his or her right to a fair trial, and his or her right to procedural fairness in the proceedings prior to trial.
The charges against the applicant are all triable on indictment in this Court. The next routine step in the proceedings is for him to be required to make an election pursuant to the Justices Act, s56A(6). Prior to 14 November 2000, that subsection read as follows::
"(6) If the defendant pleads not guilty or cause to show, the defendant shall be asked to choose one of the following courses: ¾
(a) that the defendant requires the depositions of witnesses to be taken before a justice and proposes to dispute that an order for committal be made;
(b) that, while not disputing that an order for committal be made, the defendant requires the depositions of one or more witnesses to be taken before a justice before the order for committal is made;
(c) that the defendant does not require any depositions of witnesses to be taken before a justice."
This subsection was amended by the Justice Legislation (Miscellaneous Amendments) Act 2000 by deleting par(a). Thus, while these proceedings have been pending, the election that a person in the applicant's position is required to make has become simpler. There is no longer an opportunity to dispute that an order for committal should be made. There is a right to have the depositions of one or more witnesses taken before a justice. An election needs to be made as to whether to exercise that right or not. If it is exercised, decisions need to be made as to which witnesses are to be called for the taking of their depositions.
It seems well established that, in criminal proceedings before a superior court, the trial judge has an inherent power, if the interests of justice require it, to order the Crown to produce material in its possession or power to the defence: R v Charlton [1972] VR 758; R v Clarke (1930) 22 Cr App R 58; R v Hall (1958) 43 Cr App R 29. A Crown prosecutor's duty to ensure that the Crown case is presented with fairness to the accused will sometimes require the disclosure to the defence of documentary material in his or her possession or power, with the result that the deliberate withholding of such material could result in a miscarriage of justice which might lead to the setting aside of a conviction: Clarkson v DPP [1990] VR 745 at 755. However, as Murphy J pointed out in that case at 759, "there is no rule which enables the accused to seek at the outset indiscriminately to see the relevant papers within the possession or control or power of the prosecution". It is contended on behalf of the applicant that the documents in question ought to be produced in the interests of justice, and that the complainants, who are probably not legal practitioners, owe the applicant a duty of fairness which requires the production of those documents at this stage in the proceedings.
There does not appear to be any reported authority as to the disclosure or production of documents other than witness statements at the stage the criminal proceedings have reached. However, Zeeman J did consider the situation in relation to witness statements in Wesley (supra), at 7, saying:
"… proceedings prior to committal for trial are governed by provisions which are capable of working properly only if the statements of witnesses are provided at a very early stage. Before a defendant can make a choice under s56A(6) in any informed way he requires such statements. On the other hand, the statute imposes no obligation upon any person to provide a defendant with such statements. In a proper case, justices might consider permitting a defendant to defer making his choice under s56A(6) until such time as statements have been delivered by the prosecution. Once that choice has been made, an accused person has no enforceable right to receive proofs of Crown witnesses. That is not to say that a trial judge in discharging his duty to ensure that any accused person receives a fair trial, might not in a proper case require a statement of a prosecution witness in the possession of the Crown, to be disclosed to the defence."
I accept that, at least prior to the recent abolition of contested committal proceedings, there may have been criminal cases involving such commercial complexities that it would have been improper for a magistrate to require a defendant to make an election under s56A(6) without copies of practically all the documents relied upon by the Crown, and possibly also associated documents not relied upon by the Crown, being provided to his or her counsel. It is arguable that a magistrate in such a situation would not possess any non-statutory powers to order the production of documents. Procedural fairness could be afforded to a defendant in such circumstances simply by adjourning the proceedings. Alternatively, a magistrate could issue a witness summons requiring the production of documents pursuant to the Justices Act, ss41 and 44. Such a summons could be made returnable prior to the defendant making his or her election. See Carter v Hayes (1994) 61 SASR 451. The question whether a magistrate or justice has any non-statutory powers to order the production of documents in such a situation need be decided only if such powers, if they existed, ought to have been exercised in the applicant's favour.
I have come to the conclusion that it was not unfair or unjust for the learned magistrate to require the applicant to make his election without copies of the documents in question having been provided to his counsel. I have a number of reasons for that conclusion. First, copies of the documents were available to the applicant pursuant to the FOI Act. It is true that he or his solicitors would have had to pay a fee to obtain them, but there was no evidence that he could not afford to pay the appropriate fee. Just as our system of justice ordinarily burdens accused persons, innocent or guilty, with the fees of their solicitors and barristers, there is no principle whereby they should not be required to bear the cost of appropriate disbursements, at least when it has not been shown that they lack the capacity to pay. It is true that documents provided pursuant to the FOI Act might have information as to the personal affairs of individuals deleted from them, but the applicant's solicitors would be able to obtain information so deleted, to the extent that they needed to, by taking up the offer of inspection apparently made by Mr Miller on 29 February 2000. Secondly, the consequences of an election made under s56A(6), as it read before the recent amendment, were not necessarily irreversible. A decision not to contest the making of a committal order could be overcome by making representations to the Director of Public Prosecutions as to any weakness in the Crown case. An election not to have any depositions taken, or a decision not to have a deposition taken from a particular witness, could be overcome by invoking the Justices Act, s69A. Thirdly, I am not persuaded that this is a case of such complexity that the applicant's solicitors needed information from the unseen documents in order for him to have a fair opportunity to decide how best to exercise the rights of elections conferred by s56A(6). The evidentiary material disclosed by the Crown suggests that a finance company was systematically defrauded by the submission of forged credit/lease applications and associated documents. Apparently the Crown does not rely on any evidence as to confessions or admissions on the part of the applicant. The applicant's solicitors needed to consider whether to challenge the veracity of the various witnesses who denied submitting finance applications, and whether to question any witnesses with a view to casting doubt ¾at trial or earlier ¾on the proposition that the applicant was responsible for, or a party to, the alleged fraud. I do not see how the provision of the unseen documents could have been of any significant assistance to the applicant's solicitors in assessing the chances of a magistrate deciding, in respect of any charge or combination of charges, not to make a committal order. Nor do I see how the provision of those documents would have been of any significant assistance to the solicitors in deciding which witnesses, if any, they wished to cross-examine before a magistrate or a justice of the peace.
The recent amendment to s56A(6) makes the applicant's position in these proceedings weaker. It would be futile for me to take into account in the prohibition proceedings any use that the applicant or his legal advisers could have made of the unseen documents for the purpose of deciding whether to contest the making of committal orders in respect of any of the charges against him now that he no longer has the right to contest his committal on any charge. However, for the reasons I have stated, I do not consider that the learned magistrate denied him procedural fairness having regard to the law as it stood before the amendment.
The conclusions that I have reached so far are sufficient to dispose of the prohibition proceedings and ground 3 of the notice to review. There are two other grounds in the notice to review, but ground 2 has been abandoned. Ground 1 complains that the learned magistrate "erred in fact by finding that the Applicant had not availed himself of the Tasmania Police disclosure policy made under the Freedom of Information Act 1991". The learned magistrate was given a copy of a document entitled "Department of Police and Public Safety Policy Document ¾Policy No 2/97 ¾Supply of Information by Prosecution Divisions" which outlined the policy of the Tasmania Police as to the release of documents to defendants. She was also provided with a copy of the Director of Public Prosecutions' "Guidelines for Prosecution Disclosure" which relate to the supply of information and documents by prosecutors in his office. The learned magistrate appears to have made the mistake of thinking that there was a single disclosure policy, whereas the police and the Director of Public Prosecutions have or had separate policies, the Director of Public Prosecutions' policy being embodied in guidelines. However, I consider that her mistake was immaterial. What was significant was that the unseen documents were available under the FOI Act. The learned magistrate made no mistake as to that. I consider that no substantial miscarriage of justice has occurred, and that the motion to review should therefore be dismissed pursuant to the Justices Act, s110(2)(ab).
In the prohibition proceedings, I order that the order made by Slicer J on 23 October 2000 be discharged. I dismiss the motion to review.
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