Von Snarski v Criminal Justice Commission

[1996] QCA 229

IN THE COURT OF APPEAL	[1996] QCA 229
SUPREME COURT OF QUEENSLAND

Appeal No. 206 of 1995

Brisbane

[Von Snarski v. CJC]

BETWEEN:

BARRIE RANDALL VON SNARSKI

(Applicant)

AND:

CRIMINAL JUSTICE COMMISSION

(Respondent)

Pincus J.A. Davies J.A. McPherson J.A.

Judgment delivered 12/07/1996

Joint reasons for judgment of Pincus and Davies JJ.A; separate reasons of McPherson J.A. concurring as to the orders made.

APPEAL ALLOWED. ORDER OF MAGISTRATE MADE 25 JULY 1995 SET ASIDE.
MATTER REMITTED TO THE MAGISTRATE TO DETERMINE THE APPLICATION
FOR PRODUCTION OF DOCUMENTS ACCORDING TO LAW. NO ORDER AS TO

COSTS.

CATCHWORDS:	REVIEW OF ORDER by magistrate refusing production of documents pursuant to a summons issued pursuant to s.83 Justices Act 1886 - effect of s.99 Criminal Justice Act 1989 on refusal: Miller v. Miller (1978) 141 C.L.R. 269; Hilton v. Wells (1985) 157 C.L.R. 57 - questions arising pursuant to the ordering of production of documents appropriately to be determined by magistrate.
Counsel:	Mr. M. D. Foley for the applicant Mr. A. J. Rafter for the respondent
Solicitors:	Foleys for the applicant Criminal Justice Commission for the respondent
Hearing Date:	29 May 1996

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 206 of 1995

Brisbane

Before Pincus J.A. Davies J.A. McPherson J.A.

[Von Snarski v. CJC]

BETWEEN:

BARRIE RANDALL VON SNARSKI

(Applicant)

AND:

CRIMINAL JUSTICE COMMISSION

(Respondent)

JOINT REASONS FOR JUDGMENT - PINCUS AND DAVIES JJ.A.

Judgment delivered the 12th day of July 1996

The applicant seeks review of an order by a magistrate refusing production of documents by the

respondent Criminal Justice Commission pursuant to a summons issued pursuant to s.83 of the Justices

Act in committal proceedings against the applicant in respect of an offence of carrying on the business

of trafficking in a dangerous drug namely cannabis sativa. The learned Magistrate declined to make the

order to produce the documents because he thought he was precluded from doing so by s.3.28 of the

Criminal Justice Act 1989 and the decision of this Court in R. v. Le Gros and R. v. Jackson C.A. Nos.

330 and 331 of 1992. The applicant accepts that two hand guns and some notebooks also sought in

the summons are not in the possession of the Commission.

Section 83 of the Justices Act provides:

" (1) When justices have authority to summon any person as a witness they shall have the like authority to require and compel the person to bring and produce for the purposes of evidence all documents and writings in the person's possession or power, and to proceed against the person in case of neglect or refusal so to do in the same manner as in case of neglect or refusal to attend or refusal to be examined.

(2) However, no person shall be bound to produce any document or

writing not specified or otherwise sufficiently described in the summons, or which the person would not be bound to produce upon a subpoena duces tecum in the Supreme Court."

Section 3.28 of the Criminal Justice Act is now renumbered 99 and is in the following terms:

"Subject to section 98, any information, record or thing in the possession of the commission may be utilised and dealt with in discharge of the functions and responsibilities of the commission or of the functions of any organizational unit of the commission, but otherwise shall not be made available for inspection by any person without the express authority in writing of the chairperson."

Section 98, which has no relevant application here, authorizes a commissioner to inspect any record or

thing in the Commission's custody.

Doubt has been expressed, in respect of provisions similar to s.99, as to whether a phrase such

as "any person" includes a court so as to preclude the production in evidence of any such record or thing

in the possession of the Commission. See Miller v. Miller (1978) 141 C.L.R. 269 at 277; Hilton v.

Wells (1985) 157 C.L.R. 57 at 87. In our view that doubt is well founded. We would construe s.99

as not prohibiting the tendering in evidence in Court and the subpoenaing for that purpose of documents

or other things in the possession of the Commission; that view is consistent with the construction given

to s.7(4) of the Telecommunications (Interception) Act 1979 (Cwth) in Hilton v. Wells (at 76), which

was applied in Sankyo Steamship Co. Ltd. v. Sumitomo Australia Ltd. (1992) 37 F.C.R. 353.

Le Gros and Jackson was not a case in which a subpoena duces tecum had issued on the

Criminal Justice Commission. It was an appeal to this Court in which, on a directions hearing, the

Crown, a party to the appeal, sought an intimation from this Court that the Commission disclose to it

certain material in its possession, the Commission, which was not a party, having said that it would abide

by an intimation of the Court. This Court refused to give any such intimation or to make any order

which would give effect to that disclosure, relying on s.3.28. The nature of the application, which was

made orally to the Court, can be seen from the following submissions of counsel for the Crown:

"There is material in the possession of the Commission and what the Crown seeks to do
is to access the statements which have been obtained ...
...
... but what we seek, in the circumstances, is an intimation from the Court that it would
be appropriate for the Criminal Justice Commission to release the material to the parties

to the appeal."

That case did not, therefore, concern production to the Court, the question which arises here.

The learned Magistrate was therefore wrong in refusing to order production of the documents on the

ground that s.3.28 precluded him from doing so.

Having rejected the contention that s.3.28 precluded him from ordering production of the

documents, it may have been necessary for the learned Magistrate to have then embarked on

consideration of the claim by the Commission that production of those documents would be injurious

to the public interest and consequently upon a balancing exercise of the kind referred to by this Court

in Criminal Justice Commission v. Collins, C.A. No. 33 of 1993, unreported, judgment delivered 18

February 1994.

But a balancing exercise of that kind can be conducted only when it appears that both aspects

of the public interest which have to be balanced, require consideration; in particular, in this case, that

there are or are likely to be documents which contain material evidence: Alister v. The Queen (1984) 154 C.L.R. 404 at 412, 438. Unless there is some likelihood that the documents will materially assist

the defence it is unnecessary to embark upon any such balancing exercise; and a bare unsupported

assertion that on inspection something may be found that is helpful to the defence is not enough: at 439.

See also Attorney-General for New South Wales v. Stuart (1994) 34 N.S.W.L.R. 667 at 675-6,

681-2. It would therefore have been necessary for the learned Magistrate to consider this question

first.

That is what he should now do. However the applicant sought orders from this Court going well

beyond review of the learned Magistrate's refusal and an order directing him to proceed to consider

those questions.

First, he sought an order that the documents be forthwith made available to this Court or the

Magistrate with a further direction that the applicant be granted proper access and the right to copy all

those documents. That would involve this Court embarking on consideration of the matters which we

have said the learned Magistrate should now consider; this Court lacks the advantage which the learned

Magistrate has of having heard the evidence in the committal proceedings and thus being able to

determine the possible relevance and, if relevant, importance of the documents to those proceedings and

the extent to which the evidence in those proceedings may bear on any public interest in refusing to

order production of the documents. The order sought must be refused.

Secondly, the applicant sought an order for cross-examination of Mr. Le Grand, the deponent

to the affidavit claiming public interest immunity on behalf of the Commission, or alternatively an order

that the Chairman of the Commission be directed to file another affidavit. No foundation appears in any

material before this Court for either contention, but in the end this question too is appropriately one for

the learned Magistrate.

Finally, certain "directions" were sought to the Magistrate as to how he should conduct the

further hearing of this claim and the committal proceedings generally. An example is a "direction" to

cease to regard Prisoner "A" as an informer for all purposes including those contained in ss.46 and 47

of the Drugs Misuse Act 1986. The question whether Prisoner "A" was an informer for those purposes

depends on the application of those provisions to facts which may be before the learned Magistrate but

are not before the Court. This Court is therefore not in a position to decide questions of that kind

which, in any event, it would not be appropriate to decide on an order to review a refusal to produce

documents on the ground that s.3.28 precluded production.

For the above reasons we would allow the appeal, set aside the Magistrate's order made on 25

July 1995 and remit the matter to the Magistrate to determine the application for production of

documents according to law. We would make no order as to costs.

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered the 12th day of July 1996

I have had the advantage of reading the reasons of Davies and Pincus JJ.A., and I agree with

the form of order which their Honours propose.

The first question raised by the submissions before us is whether, in providing that records in

the possession of the Commission are not to be made available for inspection by "any person", s.99 of

the Criminal Justice Act 1989 prevents inspection by a court. As to that, I concur in thinking that,

apart from particular contextual indications to the contrary, the expression "any person" in a statutory

prohibition like that in s.99 does not ordinarily include a court acting in pursuance of some compulsory

process such as a subpoena duces tecum or in this instance the summons by which a document or

other record was brought before it.

The weight of authority supports such a conclusion. In addition to what was said in Miller v.

Miller (1978) 141 C.L.R. 269, at 277, and Hilton v. Wells (1985) 157 C.L.R. 57, at 87, the decisions

of the Federal Court in Commissioner of Taxation v. Nestle Australia Ltd. (1986) 12 F.C.R. 257,

at 262 (Bowen C.J., Lockhart, Sheppard JJ.), and of Connolly J. in Irvin v. Whitrod [1978] Qd.R.

137, at 141, are to that effect. There are remarks in two English decisions which may be thought to

look in the opposite direction: see Neill v. Glacier Metal Co. Ltd. [1965] 1 Q.B. 16 and

Middlebrook v. Middlebrook [1965] P.262. They were followed in Australian & New Zealand

Banking Group v. Greig [1980] 1 N.S.W.L.R. 112, at 120, but in a context somewhat different from

s.99 of the Criminal Justice Act. None of these authorities appear to have been cited to this Court

in R. v. Le Gros and R. v. Jackson, on which some reliance was placed in the present case in the court

below.

The second question on the appeal is potentially more difficult. The subpoena duces tecum

or summons required production to the magistrate conducting the committal proceedings of a wide

range of documents comprising all video-taped and audio-taped material "touching upon or concerned

with" the applicant between certain specified dates. Whether a subpoena or summons couched in those

terms could have withstood the challenge, I do not stay to see. Mr Le Grand of the Commission has

since made an affidavit in para.(6) of which he acknowledges possession by the Commission of "certain

material ... which would fit the description of the materials sought" in the summons. Material therefore

exists which is capable of being made the subject of an order for production and, when produced, of

inspection by the court. To justify taking the matter beyond the stage it has now reached, it will be

necessary for the applicant first to demonstrate to the magistrate that the applicant has a legitimate

forensic purpose in inspecting the documents in question: see Attorney-General for New South Wales

v. Stuart (1994) 34 N.S.W.L.R. 667, at 681. In this Court, the applicant submitted that he wished

to inspect in order to prepare cross-examination of one or more prosecution witnesses with a view to

laying a foundation for a defence based on Ridgeway v. The Queen (1995) 69 A.L.J.R. 484. The

nature of that defence was not precisely formulated before us, and, without knowing more about the

facts, it is not possible to do justice to it here. It is a matter for the magistrate to consider at the

committal proceedings, when the application is made to him.

If that threshold requirement is satisfied, it will then become the function of the magistrate to

carry out the "balancing exercise" between the competing elements of public interest involved. In this

Court we were invited to delve into those questions, and to give the magistrate the benefit of our opinion

on them in advance. But even if we had the power to do so, it is not a function that could be adequately

discharged on the material now before us. It requires consideration of a range of factors which will not emerge until submissions are made at the committal proceedings, and when the magistrate has had an

opportunity to consider those submissions in the light of the authorities, including what was said on the

subject in A.-G. (N.S.W.) v. Stuart (1994) 34 N.S.W.L.R. 667, at 683.

I agree with the order proposed.