R v Zdravkovic
[2015] ACTSC 154
•15 June 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Zdravkovic |
Citation: | [2015] ACTSC 154 |
Hearing Date(s): | 11 and 15 June 2015 |
DecisionDate: | 15 June 2015 |
Publication of Reasons Date: | 26 June 2015 |
Before: | Refshauge J |
Decision: | 1. The requirement for personal service of the subpoena issued to TS be dispensed with. 2. The subpoena and a copy of this order be delivered to [address in Canberra] by no later than close of business on Tuesday 16 June 2015 and affixed to the front door of the premises. 3. A letter, enclosing a copy of the subpoena and this order be personally delivered to Mr James Maher of Kamy Saeedi Law, who has filed a Notice of Solicitor Acting for Peter Zdravkovic, advising him of the date and time of delivery of the subpoena to [address in Canberra]. 4. A letter be sent, addressed to TS, by pre-paid post to [address in Canberra] enclosing a copy of the subpoena and of this order, advising her that upon compliance with that order, the court has deemed that compliance with the order will be deemed to be good service on her of the subpoena as if it had been personally served and that she will, therefore, be bound by its terms. 5. A letter be sent by prepaid post or hand delivered, enclosing a copy of the subpoena and this order, to [TS’s mother], requesting her to bring the documents to the attention of her daughter. 6. A text message be sent to the mobile telephone number of TS advising that a subpoena has been issued requiring her attendance at court on 22 June 2015 and a copy has been sent to her home address, her mother and Mr Zdravkovic’s lawyer as well as being delivered to her home which the court has declared is a binding order on her to attend. 7. Any conduct money payable to TS be payable to her in cash upon her attendance at Court on 22 June 2015. 8. The delivery of the documents in accordance with orders 2 and 6 be deemed to be good service of the subpoena on TS. |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – Jurisdiction Practice and procedure – Subpoena – Service – Application for substituted service – Service of a subpoena – Attempting to evade service – Reasonable efforts made to effect personal service – Dispensing power under s 6 of the Court Procedures Rules 2006 (ACT) |
Legislation Cited: | County Court Civil Procedure Rules 2008 (Vic), r 6.10 County Court Criminal Procedure Rules 2009 (Vic), r 1.09 |
Cases Cited: | Canberra Residential Development Ltd v Brendas [2010] FCA 90 Chappell v Coyle (1985) 2 NSWLR 73 |
Parties: | The Queen (Crown) Peter Zdravkovic (Defendant) |
Representation: | Counsel Mr A Williamson (Crown) No appearance (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Crown) No appearance (Defendant) | |
File Number(s): | SCC 227B of 2014 |
REFSHAUGE J:
The accused, Peter Zdravkovic, has been charged on indictment with trafficking in a controlled drug other than cannabis, namely cocaine, and a similar offence involving methylamphetamine. His trial on these charges was listed to commence on 22 June 2015. I understand that he has pleaded guilty to certain charges and is to be sentenced later this year.
These charges arose out of a search conducted of Mr Zdravkovic’s residence with the authority of a search warrant issued under s 187 of the Drugs of Dependence Act 1989 (ACT). It is asserted that, during the search, police found numerous illegal drugs, including 242 grams of cocaine and 224 grams of methylamphetamine.
At the time of the search, Mr Zdravkovic was living with his 17 year old girlfriend, TS. The Crown wishes to call TS as a witness at the trial. As a result, a subpoena to give evidence has been issued, addressed to TS.
On four occasions during the week commencing 24 May 2015, attempts were made to serve TS with the subpoena but without success.
Telephone calls to TS’s mobile phone were unanswered, except on one occasion when a person identifying himself as Mr Zdravkovic answered and said that she was overseas and would not be returning until after 15 June 2015. Inquiries of the Department of Immigration and Border Protection were made which disclosed that their records stated that she had not left Australia as at that date.
In a later telephone call from a person identifying himself to a police officer as Mr Zdravkovic, the person said that TS had gone to South Australia some months ago to an unknown destination and that he had her mobile phone.
TS’s mother, however, said that TS was still living in Canberra, with Mr Zdravkovic, and that her mobile phone number had not changed.
Police records show that TS lives at [address in Canberra] with Mr Zdravkovic and that they are the parents of a child born on 3 March 2015. ACT Road Transport Authority records show that both TS and Mr Zdravkovic have current driver licences which show their registered address as [address in Canberra].
Mr Zdravkovic is the President of an organisation known as the Comancheros Outlaw Motorcycle Gang which is said to be notorious for its involvement in organised crime, including drug trafficking. Members are also said to be well-known for intimidating witnesses in court matters that involve its members.
As a result, application has now been made for an order for substituted service of the subpoena on TS.
When the application first came before me, I pointed out certain legal difficulties in the application, which I address below, and suggested that, if these were to be overcome by seeking appropriate leave of the court, further efforts should be made to serve TS.
Those efforts have now been made but without any better success.
Thus, on the afternoon of the day the original application was made, police attended at the premises and kept it under surveillance for two hours but without being able to make any contact with any resident.
Indeed, I was told that police attendance at the premises in the past has elicited no response from any occupant of the premises, a matter I will address in consideration of the orders to be made.
The next day, police attended again at the premises and were unable to make any contact with any of the occupants. Accordingly, they left a business card of the informant, Federal Agent [name redacted]. Later that day, a voicemail was left on the Federal Agent’s phone to say that police should stop calling at the house as they were being watched on CCTV installed on the premises. The message also stated that, if anyone wanted to contact Mr Zdravkovic, they should call him on the phone or speak to his lawyer.
The police who attended then visited Mr Zdravkovic’s parents [redacted]. The parents told police that TS still lived at [address in Canberra] and that they had last seen her two days ago.
They said that they had no knowledge of her ever being in South Australia. They said that she was lazy, that she did not arise early and only left the house to go to the shops or to visit her mother.
These efforts seem to me to be reasonably substantial attempts to effect personal service on TS, unlike those described by Nettle JA in ZL v The Queen (2010) 208 A Crim R 325 at 331; [32] as “superficial and by and large, decidedly half-hearted”. Thus, the failure may result in TS being, under the Evidence Act 2011 (ACT), unavailable, which could entitle any representations she has made to be admitted into evidence under s 65 of that Act, subject to the provisions of s 18 of that Act, if applicable. The prosecution, however, appear to have no such representations.
On 15 June 2015, I made orders dispensing with personal service of the subpoena on TS and prescribing another method of service which is to be deemed good service. I said that, because of the importance of the matter, I would publish my reasons later. These are my reasons.
The law
Ordinarily, a subpoena to give evidence should be served personally on the addressee, that is the person required by the court order, which is the subpoena, to appear and give evidence. That has been the law for a very long time. See, for example, Wakefield’s Case (1736) Cas T Hard 313; 95 ER 202; Smalt v Whitmill (1736) 2 Strange 1053; 93 ER 1028. This has now been legislated for in r 6605 of the Court Procedure Rules 2006 (ACT) which requires a subpoena to be served personally on the addressee.
There is a suggestion, however, that at common law this is not an absolute requirement. In the decision of Dyson v Foster (Unreported, UK High Court, Kings Bench Division, Jelf J, 7 February 1908), the court ordered substituted service where a witness persistently refused admission to her house for the purpose of service. This case was followed in Australia in Ward v Interag Pty Ltd [1985] 2 Qd R 552 at 555. This appears to be a common law power. See Kinder v Forbes (1840) 2 Beav 503 at 507; 8 ER 1277 at 1278; Hornby v Holmes (1845) 4 Hare 306 at 307; 67 ER 664 at 665.
Legislative action has also altered that position. Thus, r 6460 of the Court Procedures Rules permits substituted service of a document otherwise required to be served personally. So far as I can determine, there is no authority that expressly applies this rule to a subpoena to give evidence.
The width of the rule is, however, apparently sufficient to permit its application to such a subpoena. Although this has been doubted by Barrett J in Nash v Stewart [2010] NSWSC 513, his Honour relied there on the construction of the particular rules which his Honour held did not clearly show that the provision enabling substituted service to apply. The Court Procedures Rules are different. In particular, there is no equivalent in the Court Procedures Rules to r 10.20 of the Uniform Civil Procedure Rules 2005 (NSW) on which his Honour particularly relied.
I note, also, that Hamilton J held in Slieman v Afeich [2005] NSWSC 992 at [3], though without argument or explanation, that substituted service was available for service of a subpoena.
Barrett J in Nash v Stewart at [21] did explain some reasons to be hesitant about permitting a subpoena to be served by substituted service, where his Honour said:
But a subpoena to attend to give evidence is something that carries penal consequences in case of disobedience. Someone who does not attend can be arrested and may be punished for contempt. That, I have no doubt, is why personal service is required, and why no clear method (or, as I think is probably the case, no method at all) is provided for allowing some remoter and less secure method of notification. Penal consequences should not be triggered by any such remoter and less secure method.
Despite this decision, I am satisfied that, in appropriate cases, a subpoena may be served by means of substituted service. See, for example, Rossi v The Queen [2012] VSCA 228 at [26]; Microsoft Corporation v Leonidas [2010] FMCA 986 at [44]; Michael Wilson & Partners Ltd v Nicholls [2009] NSWSC 878 at [16]; Ryder v Lee [2009] FAMCA 531 at [9]; Optics Online Pty Ltd v Sunland Group Ltd [2007] FCA 711; Westmelton (Vic) Pty Ltd (Receiver and Manager Appointed) v Archer and Shulman [1982] VR 305. For reasons to which I now turn, however, that is not directly relevant here.
The provisions in the Court Procedures Rules concerning subpoenas are in Pt 6.8 which is part of Ch 6 and the rules in which Chapter, by r 6000, apply to all proceedings in this Court unless a rule or other Territory law provides that it does not.
Therefore, unless excluded, the provisions regulating subpoenas apply to criminal proceedings. This is clear from the plain reading of the Court Procedures Rules and the conclusion is re-inforced by r 4006 which expressly excludes the application of certain rules in Ch 6, thus leaving available the inference that the rules not there specified do apply.
The problem in this case is that one of the Rules disapplied for criminal proceedings by r 4006 of the Court Procedures Rules is r 6460, namely the rule permitting substituted service.
There is no doubt that these proceedings are criminal proceedings in this Court since an indictment has been filed. See R v Scott (1993) 42 FCR 1.
Thus, unless there is some exception or other means of overcoming the apparent prohibition in r 4006 of the Court Procedures Rules, I am not able to make the order sought because of the prohibition in the Rules from applying the substituted service rule to this subpoena.
Reliance was placed on the power under r 6 of the Court Procedures Rules to dispense with the application of a provision of the rules. The rule allows such dispensation to be given on any conditions the court considers appropriate. It does not, however, set out in the rule the criteria on which to decide whether to apply the provision.
A provision such as this has been described by Neaves J in Lazar v Taito (Australia) Pty Ltd (1985) 5 FCR 395 at 414 as conferring a wide discretion on the court. That case concerned a criminal proceeding, namely contempt of court, and the Full Court held that O 1 R 8 of the Federal Court Rules 1979 (Cth), relevantly identical to r 6 of the Court Procedures Rules, gave the court power to dispense with personal service of a notice of motion seeking that the appellant be dealt with for contempt of earlier orders made by the court. Order 40 R 8 of the Federal Court Rules required such a notice of motion to be served personally.
Neaves J (at 414) commented that such occasions for dispensation would be limited and McGregor J (at 403), agreeing that the Court had the power of dispensation, commented that such dispensation should “rarely be given and only when it is impossible to effect personal service ... [and] where there is no apparent injustice”.
This approach is, of course, an expression of the oft-cited principle that “the rules must be the servant not master of the Court” as expressed as long ago as 1882 in Clune v Watson [1882] Tarl 75. The provision gives the court “an extremely wide discretion”: Canberra Residential Development Ltd v Brendas [2010] FCA 90 at [10].
There is, however, some suggestion in the authorities of limits to the power of dispensation under such a rule. In Survival & Industrial Equipment (Newcastle) Pty Ltd (t/as SIE Liferaft Servicing) v Owners of the Vessel “Alley Cat” (1992) 36 FCR 129 at 138, Sheppard J explained of such a rule:
Its purpose is simply to enable the court in a proper case to relieve a party of an obligation to comply with particular provisions of the Rules, for instance, as to time or the filing of pleadings and suchlike.
In that case, Sheppard J declined to exercise a dispensing power under the equivalent to r 6 of the Court Procedures Rules. There, proceedings had been commenced against a ship but its whereabouts were unknown and the plaintiff attempted to find out its location by an application for preliminary discovery in which it sought to have the lawyer for the ship’s owner called to be examined. Such an application, however, is only available prior to the commencement of the proceedings, which, in this case, had already been commenced.
Sheppard J declined to dispense with the rules, pointing out that the exercise of the power in those circumstances would not be a dispensing power so much as an amending power. His Honour said (at 138):
One would need in some way to use it for the purpose of amending the rule for the purposes of this particular case so as to confer a power in the court which it otherwise would not have had.
Given the express exclusion of the power to order substituted service by virtue of r 4006 of the Court Procedures Rules, the question arises as to whether r 6 would permit that. To dispense with the express prohibition would seem to amend rather than dispense with the rule.
The court has had, however, a power at common law to order substituted service of process generally, including subpoenas. Thus, this is not a case where, absent the rule, the court would still not have the power to make the order sought.
The question must be faced, however, that there is here a specific prohibition, that r 4006 of the Court Procedures Rules expressly excludes substituted service of criminal process, including subpoenas. Does such a prohibition amount to a bar of the kind identified by Sheppard J?
Clearly, the rule will permit the court to dispense with some prohibitions, especially where a mandatory requirement is subject of such dispensation.
Thus, in Galletta v Walter (1977) 1 NSWLR 1, Yeldham J held that the court could dispense with a rule that required the grounds of a stated case to be specified in the Form by which the proceedings were commenced and thereby permit an applicant to argue grounds not so stated.
The limits may, perhaps, be seen in the decision of Chappell v Coyle (1985) 2 NSWLR 73, though not a decision on a rule such as r 6 of the Court Procedures Rules. There the court declined to permit substituted service of a Statement of Claim on the compulsory third party insurer when the defendant could not be found. This, his Honour held, would not meet the requirements of substituted service, namely that the method employed was likely to bring the process to the notice of the person to be served.
Similarly, in Grey v Mango Pre Paid Calling Card Pty Ltd (2004) 141 FCR 370 at 382-3; [53]-[54], Nicholson J held that a requirement for service could be dispensed with as it was a matter of procedure but that, where a party seeks judgment against another party who has failed to comply with an order of the court directing that party to take a step in the proceedings, the requirement that the application be supported by evidence could not be dispensed with by the court as this was not a matter of procedure but an irregularity.
The dispensing power has been used to dispense with compliance with the rules relating to service out of Australia and permit substituted service: Tiezone Pty Ltd v Schenker SA (t/as Schenker Stinnes Logistics) [2004] FCA 847 at [21].
Applying these principles, I need to determine whether the express prohibition from permitting substituted service of a subpoena is a matter that is subject to the dispensing power under r 6 of the Court Procedures Rules.
In one sense, to exercise such a power directly negates the rule and this undermines its provisions if they can be avoided in this way. On the other hand, where the rules require a particular method of procedure, the procedure is apparently mandatory or, alternatively, it could be said that non-compliance is prohibited.
There is, in the Court Procedures Rules, no indication of why substituted service should be prohibited of a subpoena in criminal proceedings. The explanation by Barrett J, referred to above (at [25]), applies equally to civil and criminal proceedings, yet substituted service of subpoenas is allowed in civil matters.
I have also inspected the provisions in other jurisdictions. In Victoria, s 194(2) of the Evidence Act 2008 (Vic) permits a court to issue a warrant for the arrest of a person who, when a subpoena has been issued, is proved to the satisfaction of the court to be avoiding service of the subpoena.
In the District Court Rules 1973 (NSW) there are a range of methods, other than personal service, of serving a subpoena expressly provided for in the Rules, although there does not appear to be provision for substituted service.
Thus, under r 20 (Part 53, Division 2) of the District Court Rules, a subpoena may be served by sending it by post or facsimile to the addressee’s residential address, by electronic communication to the person’s email address or, with consent, by leaving it with a relevant legal practitioner.
Under r 6.10 of the County Court Civil Procedure Rules 2008 (Vic), it appears that the court may permit substituted service of a subpoena in criminal proceedings. These rules appear to be made applicable to criminal proceedings by r 1.09 of the County Court Criminal Procedure Rules 2009 (Vic).
I note also that under the Supreme Court Rules 1937 (ACT), substituted service of a subpoena was permitted, with no distinction between a subpoena issued in civil or criminal proceedings.
I have looked at other jurisdictions and there is a range of answers. In Tasmania, for example, Notices issued by the Registrar requiring a witness to attend a criminal proceeding (equivalent to a subpoena) must be served personally: s 4 of the Criminal Procedure (Attendance of Witnesses) Regulation 2009 (Tas). There is no apparent provision for other means of service.
On the other hand, in Western Australia, a witness summons may be served personally but also by handing it to a person who appears to have reached 16 years of age and appears to be residing at or in charge of or employed by the person in charge of the place where the witness resides or works: cl 2 of Sch 2 of the Criminal Procedure Act 2004 (WA).
Again, in South Australia, a subpoena must be served personally, but even without personal service the subpoena binds a person who has actual knowledge of the subpoena and its requirements: rr 71 and 72 of the Supreme Court Criminal Rules 2014 (SA).
Mr A Williamson, counsel for the Crown, submitted that a failure to provide a mechanism for alternative means of service of a subpoena where a witness is evading service would bring the administration of justice into disrepute. While I understand the argument, such a policy approach cannot permit the court to ignore or circumvent the law which would, of itself, have the effect of bringing the administration of justice into disrepute itself, but probably resulting in much more damage ultimately.
Nevertheless, despite the lack of uniformity in comparative provisions nationally, it does not seem to me that there is a clear prohibition on means of service alternative to personal service, if available at law, of a subpoena where personal service cannot be effected, nor a clear rationale for negating alternatives to personal service of a subpoena to give evidence in criminal proceedings.
In my view, but not without some hesitation, the court has jurisdiction in an appropriate case to act under r 6 of the Court Procedures Rules and dispense with the requirement in r 6605 of the Court Procedures Rules that this subpoena be served personally. It is a power that should, however, be exercised sparingly and not as of course.
Should the subpoena in this case be served in another way?
I have earlier in these reasons set out the efforts that have been made to effect personal service on TS. I am satisfied from the evidence I accept that she is attempting to evade service.
The setting aside of r 6605 of the Court Procedures Rules, however, does not mean that r 6460 becomes appropriate. Thus, I do not consider that I could dispense with r 4006. Instead, it seems to me that the court may exercise the common law power, once I dispense with the requirement of personal service in r 6605.
The first thing is to determine whether reasonable efforts have been made to try and effect personal service. I have set out the efforts that have been made. They are, in my view, reasonable efforts. They do seem to me to permit an inference that TS is attempting to evade service.
The next question is whether the method proposed is likely to come to the notice of TS. What is proposed is that the subpoena be served on:
a. the accused;
b. a legal practitioner acting for the accused;
c. [TS’s mother] (D.O.B. redacted); or
d. Any person at [address in Canberra].
These are alternatives. I am not sure that any one of them will, of itself, bring the attention of TS to the subpoena. That must, ultimately be the principle upon which alternative means of service are based.
For example, if, as alleged, Mr Zdravkovic or his colleagues in the Comancheros Outlaw Motorcycle Gang are actively discouraging TS from attending court to give evidence, and he is served with the subpoena, he is just as likely to discard it and not tell TS about it.
Accordingly, it seems to me that it will be necessary to take further steps than that.
What I initially propose is that the following steps be taken:
1. The subpoena and a copy of the order I will make be personally delivered to either Mr Zdravkovic or any other person apparently over the age of 16 years at [address in Canberra].
2. A letter, enclosing a copy of the subpoena and the order I will make be personally delivered to Mr James Maher of Kamy Saeedi Law, who has filed a Notice of Solicitor Acting for Mr Zdravkovic, advising him of the date and time of delivery of the subpoena on either Mr Zdravkovic or a person at [address in Canberra].
3. A letter be sent, addressed to TS, by pre-paid post to [address in Canberra] enclosing a copy of the subpoena and of the order I will make, advising her that upon compliance with that order, the court has ordered that compliance with the order will be deemed to be good service on her of the subpoena as if it had been personally served and that she will, therefore, be bound by its terms.
4. A letter be sent by prepaid post or hand delivered, enclosing a copy of the subpoena and the order I will make, to [TS’s mother], requesting her to bring the documents to the attention of her daughter.
5. A text message be sent to the mobile telephone number of TS advising that a subpoena has been issued requiring her attendance at court on 22 June 2015 and a copy has been sent to her home address, her mother and Mr Zdravkovic’s lawyer as well as being given to Mr Zdravkovic or a person at her home which the court has declared is a binding order on her to attend.
It seems to me that this is sufficient to ensure, as best as possible, that the subpoena and its requirements will be brought to the attention of TS.
Subject to any submissions, I propose to direct that these steps be taken and that the completion of these steps shall be deemed to be good service of the subpoena on TS.
I subsequently heard submissions on the proposed orders and accepted that they needed to be modified.
Thus, it appears that no-one at [address in Canberra], including Mr Zdravkovic, is likely to open the door or be available to be served personally. Indeed, the evidence shows that Mr Zdravkovic knows of the attendance of police but declines to answer the door to them. Instead, it seemed to me that, with the other requirements, delivery to the premises and affixing the subpoena and a copy of the order I shall make to the front door of the premises should be sufficient.
The other requirements will need to be modified to take account of this modification.
Mr Williamson also pointed out that under r 6602(8) of the Court Procedures Rules a subpoena must be served 5 days before the date for compliance and this would not be possible. The court may, alternatively, specify another date. I will specify a date by which the subpoena must be delivered to [address in Canberra].
Finally, under r 6606 of the Court Procedures Rules a person served with a subpoena need not comply with it unless conduct money has been handed or tendered to the addressee a reasonable time before compliance. In the circumstances, that will not be possible before TS answers the subpoena at court on 22 June 2015, though she may not be called at that time. Accordingly, it is appropriate to dispense with that requirement also and instead require the Crown to pay TS in cash the conduct money on 22 June 2015 when she then attends.
Accordingly, I made orders which gave effect to these reasons.
| I certify that the preceding seventy-six [76] numbered paragraphs are a true copy of the Reasons for Judgment his Honour Justice Refshauge. Associate: Date: 25 June 2015 |
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