Ted Watkins (a pseudonym)andVINCENT Mann (a pseudonym)[1] v Commissioner of the Australian Federal Police and Director of Public Prosecutions (Vic)

[2015] VSCA 321

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0201
S APCR 2015 0202

TED WATKINS (A PSEUDONYM) and VINCENT MANN (A PSEUDONYM)[1]	Applicants
v
COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE	(Named as) First Respondent
DIRECTOR OF PUBLIC PROSECUTIONS (VIC)	(Named as) Second Respondent

[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of pseudonyms in place of the names of the Applicants.

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JUDGES:	OSBORN and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 November 2015
DATE OF JUDGMENT:	27 November 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 321
JUDGMENT APPEALED FROM:	Director of Public Prosecutions (Vic) v [Watkins] & [Mann] (Unreported, County Court of Victoria, Judge Allen, 9 October 2015)

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PRACTICE AND PROCEDURE – Criminal Proceeding – Interlocutory Appeal – Appeal against trial judge’s decision to set aside subpoenas – Application by witness the subject of subpoena to join as respondent to appeal – Discussion of proper parties to an interlocutory appeal under the Criminal Procedure Act 2009 – Not a proper party to the appeal – Leave to intervene granted.

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APPEARANCES:	Counsel	Solicitors
For the Applicant ‘Watkins’	Mr C Carr	Valos Black & Associates
For the Applicant ‘Mann’	Mr A V Chernok	Valos Black & Associates
For Commissioner of the Australian Federal Police	Mr O P Holdenson QC with Mr J Forsaith	Australian Government Solicitor
For the Director of Public Prosecutions (Vic)	Mr A Albert	Ms V Anscombe, Acting Solicitor for Public Prosecutions

OSBORN JA:
PRIEST JA:

1. Watkins and Mann[2] are charged on indictment with conspiring to traffick a large commercial quantity of a drug of dependence. 

   [2]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of pseudonyms in place of the names of the Applicants.

1. During the course of the investigation of the alleged offending, Federal police obtained a series of warrants under the Surveillance Devices Act 2004 (Cth) and Telecommunications (Interception and Access) Act 1979 (Cth) (‘the surveillance warrants’).

1. Watkins caused two subpoenas to be issued to the Commissioner of the Australian Federal Police (‘the Commissioner’) on 4 and 20 August 2015, each seeking production of documents relating to the surveillance warrants. 

1. The Crown then made applications to set aside the subpoenas on the ground that they had no legitimate forensic purpose. 

1. On 9 October 2015 his Honour Judge Allen held that there was no legitimate forensic purpose for the subpoenas and set them aside. 

1. Watkins and Mann have instituted an application for leave to appeal the interlocutory decision of the judge, in which the Commissioner is named as a respondent. 

1. To avoid doubt as to his status, the Commissioner has applied to be joined as a respondent to the interlocutory appeal proceeding and, in the alternative, as an intervener. 

1. The Commissioner submits first that he is properly named as a party to the appeal proceeding because he was a party to the interlocutory decision.  Secondly, it

is submitted that the Criminal Procedure Act 2009 is silent as to who may properly be joined as a respondent to an interlocutory appeal. 

1. Thirdly, it is submitted:

Turning to context and purpose, one finds nothing to indicate that the parties to the appeal must be the parties to the prosecution, as opposed to the parties to the interlocutory decision appealed from.  To the contrary, interlocutory decisions (eg on contested subpoenas, or claims of privilege) frequently involve third parties.  It would be strange if a party to the very interlocutory decision appealed from necessarily lost their party status on appeal, leaving them to apply to intervene, especially given that such an application would need to be granted in order to ensure natural justice.

1. We accept that the Commissioner was a party to the relevant decision.  Indeed, because the County Court Criminal Procedure Rules 2009 adopt the County Court Civil Procedure Rules 2008 with respect to subpoenas,[3] it might be said that the Commissioner was a party to a proceeding with respect to the subpoenas, which was determined by the County Court judge. 

   [3]Rule 1.09. 

1. The basis of the proceeding before this Court is, however, limited to the right conveyed by s 295 of the Criminal Procedure Act 2009:

295     Right of appeal against interlocutory decision

(1)This section applies to a proceeding in the County Court or the Trial Division of the Supreme Court for the prosecution of an indictable offence.

(2)Subject to this section, a party to a proceeding referred to in subsection (1) may appeal to the Court of Appeal against an interlocutory decision made in the proceeding if the Court of Appeal gives the party leave to appeal.

Note

See the definition of interlocutory decision in section 3.

(3)A party may not seek leave to appeal unless the judge who made the interlocutory decision certifies—

(a)if the interlocutory decision concerns the admissibility of evidence, that the evidence, if ruled inadmissible,

would eliminate or substantially weaken the prosecution case; and

(b)if the interlocutory decision does not concern the admissibility of evidence, that the interlocutory decision is otherwise of sufficient importance to the trial to justify it being determined on an interlocutory appeal; and

(c)if the interlocutory decision is made after the trial commences, either—

(i)that the issue that is the subject of the proposed appeal was not reasonably able to be identified before the trial; or

(ii)that the party was not at fault in failing to identify the issue that is the subject of the proposed appeal.

(4)A request for certification under subsection (3) must be determined as soon as practicable after the request is made.

1. In our view, it is plain that the proceeding with which the relevant appeal right is concerned is ‘the prosecution of an indictable offence’ as referred to in s 295(1).

1. This follows from both the interlocutory character and purpose of the appeal procedure.  It is directed to facilitating the trial of indictable offences in accordance with law. 

1. The Commissioner is not a party to that proceeding and should not be joined as a party to the interlocutory appeal. 

1. It was conceded on behalf of the Commissioner that he could not institute an application under s 295 himself. In our view, the respondents contemplated by s 295 are also necessarily limited to parties to the prosecution of an indictable offence.

1. The Commissioner should, however, be joined as an intervener as his rights and interests may be directly affected by the outcome of this appeal. 

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