Paulo v Commissioner of Police

1. [1]

   On 1 September 2018, committal proceedings were commenced against the plaintiff in respect of a number of indictable offences. A charge certificate dated 19 March 2019 was filed on 20 March 2019.

2. [2]

   One of the prosecution witnesses is a vulnerable witness, in respect of whom there have been two recorded interviews. The prosecution brief included transcripts of those recorded interviews (one dated 31 August 2018, and one dated 27 April 2020), but not the recordings themselves; it was not required to do so because (NSW) Criminal Procedure Act 1986 (“CPA”), s 283C(5), provides:

3. [3]

   Counsel for the plaintiff viewed the 31 August 2018 interview recording, but not the 27 April 2020 recording. The plaintiff personally has never had the opportunity to view either recording. In order to obtain access to the recordings themselves, in the course of the committal proceedings the plaintiff procured the issue from the Local Court on 27 May 2020 of a subpoena addressed to the first defendant Commissioner of Police for production of the actual recordings of both interviews. On the Commissioner’s application, on 17 August 2020 Stapleton LCM set aside the subpoena as an abuse of process, for the reason that s 283C(5) would be circumvented if an accused could subpoena a copy of the recording of the interview with the vulnerable person, as that provision has the effect not only that the recording is not required to be served but also that the accused is not entitled to a copy.

4. [4]

   On 18 November 2020, the plaintiff was committed for trial to the District Court, pursuant to CPA, s 93. An indictment has since been presented, and the matter has been set down for trial generally (that is to say, not as to fitness to plead, notwithstanding that the committal was under s 93).

5. [5]

   By summons filed in this Court on 21 September 2020 and amended on 1 December 2020, the plaintiff claims:

   1. (1)

      an extension of time to 21 September 2020 to commence the proceedings (pursuant to (NSW) Supreme Court Rules 1970 (“SCR”), Pt 51B r 5(5));

   2. (2)

      an order setting aside the decision to set aside the subpoena (by way of appeal, pursuant to (NSW) Crimes (Appeal and Review) Act 2001 (“CAR Act”), s 55(3)(a));

   3. (3)

      alternatively, an order in the nature of certiorari quashing that decision;

   4. (4)

      a declaration that CPA, s 283C(5), does not prevent a recorded interview with a vulnerable person being produced in answer to a subpoena for production;

   5. (5)

      an order that the defendant produce to this Court the items called for by the subpoena;

   6. (6)

      access to the materials so produced;

   7. (7)

      alternatively, that the subpoena be relisted in the Local Court; and

   8. (8)

      costs.

6. [6]

   The plaintiff’s written submissions of 25 January 2021 referred to the judgment of Adams J in DPP v SW (“SW”), to which the Magistrate had not been referred, in which it was said: [1]

7. [7]

   In response to those submissions, the Commissioner promptly conceded that the Magistrate’s decision was erroneous and offered to produce the material which had been sought by the subpoena to the plaintiff, subject to appropriate confidentiality undertakings. However, the plaintiff insisted that, there being error on the face of the record attending the Magistrate’s decision, the decision should be set aside and there should be a formal ruling of this Court on the issue. It was explained that one reason why the matter remained on foot was that it was legally aided on a particular basis, presumably being the public interest in resolving the question authoritatively.

8. [8]

   Although there were no proceedings remaining in the Local Court, the plaintiff sought the documents referred to in the subpoena for use in connection with trial in the District Court. One might have thought that the appropriate course would have been to issue a subpoena from the District Court. The plaintiff took the position that to do so was arguably improper, given the Local Court’s decision that the subpoena was an abuse of process, and that position is to a point understandable, although it is difficult to see how the contention that it was an abuse could be maintained once the Commissioner had conceded that the Magistrate’s decision was erroneous. Thus the plaintiff pressed for the relief sought in the summons.

9. [9]

   I agree that her Honour erred in placing reliance on s 283C(5). I accept that, for the reasons given by Adams J in SW, s 283C(5) does not preclude the production of a recording pursuant to a subpoena. That approach is also supported by Application of the Attorney-General for NSW dated 4 April 2014, [2] which concerned (NSW) Children and Young Persons (Care and Protection) Act 1998, s 29(1)(e), which provides:

10. [10]

    Accordingly, while s 283C(5) does not require a recording to be served as part of a brief of evidence, it says nothing about the production of a recording pursuant to a subpoena. Insofar as the Magistrate relied on the contrary view, her Honour was in error – though regrettably she was not assisted by reference to the relevant authorities.

11. [11]

    However, as it was not clear to me that it was appropriate in all the circumstances to grant all or any of the relief sought by the plaintiff, but as there was no suggestion that there was any legitimate basis on which production of the documents for the purpose of the District Court proceedings could or would be opposed, and given that their production was urgently required for that purpose, a practical solution was provided by the following regime, which was instituted at the end of the hearing:

12. [12]

    The issues which remain for consideration are:

    1. (1)

       Whether an appeal lies, under CAR Act, s 53(3)(a), from the Magistrate’s decision;

    2. (2)

       If so, whether leave to appeal should be granted. This includes questions as to the utility and appropriateness of granting relief, including the consequential relief (production to this Court) sought; and

    3. (3)

       If not, whether the alternative relief of certiorari or a declaration should be granted.

Appeal under s 53(3)(a)

1. [13]

   CAR Act, s 53(3), relevantly provides:

2. [14]

   Thus the right of appeal, by leave, is given to “[a]ny person against whom an order has been made by a Magistrate in relation to the person in any committal proceedings”. This appears to require that (a) the Magistrate has made an order, (b) against the appellant, and (c) in relation to the appellant.

3. [15]

   Although it has been held that a refusal by a magistrate to order the attendance of a witness under CPA, s 91, cannot be the subject of an appeal, because a refusal to make an order is not an order, [4] I accept that an order setting aside a subpoena is an order within the meaning of s 53(3)(a). Unlike a refusal to make an order, the setting aside of a subpoena involves a formal order of the Court. This Court has, in a number of cases, proceeded on the basis that a decision by a Magistrate to set aside a subpoena or to refuse access to subpoenaed material constitutes an “order” for the purposes of s 53(3)(b), and there is no relevant distinction with s 53(3)(a) in this respect. [5]

4. [16]

   Although it was held, by Malpass AsJ in Commissioner of Police v Chidgey, [6] that “any person” referred only to the defendant, and not to a subpoena recipient, this may be doubted; the contrary view is implicit in Jolley v DPP, [7] but it was not argued. It need not be resolved in this case, because the appellant was in any event the defendant in the Local Court.

5. [17]

   Section 53(3) originated as ss 104(3)-(4) of the (NSW) Justices Act 1902 (“Justices Act”), which were introduced by the (NSW) Courts Legislation Amendment Act 1999:

6. [18]

   The Second Reading Speech by the Hon JW Shaw, Attorney-General, explained that this was “to clarify that an appeal under [Part 5 of the Justices Act] may be brought, with the leave of the Supreme Court, in relation to committal proceedings and in relation to interlocutory orders made by a magistrate in summary proceedings”. [8] The Explanatory Note suggests that such right of appeal already existed, [9] but it did not. Formerly, the only avenue for challenging orders made in committal proceedings by was prerogative, declaratory, or injunctive relief. [10]

7. [19]

   As will be seen, in that form the words “in relation to” governed “the committal proceedings”, not “the person”; and there was no requirement that the order be “against” the appellant. There is no doubt that the Magistrate’s order in these proceedings would have been amenable to appeal under the former s 104(3).

8. [20]

   The present form was adopted when the (NSW) Crimes (Local Court Appeal and Review) Act 2001 [11] was introduced. The second reading speech records that the intention of the new Bill was to consolidate the existing law. [12] It does not suggest that there was any intention to restrict rights of appeal given under the previous law.

9. [21]

   In my view, for the purposes of s 53(3), an order is taken to be made “against” a person if it is directly against the interests of that person. On that basis, an order setting aside a subpoena issued at the request of the plaintiff is an order against the plaintiff. The plaintiff is the person aggrieved by the order.

10. [22]

    The observation that the second reading speech reveals no intention to narrow the scope of the right of appeal from that conferred by s 104(3) is relevant also to the words “in relation to the person”. It is not clear what work that phrase does in addition to the requirement that the order be “against” the appellant. However, the transposition of the predicate of the phrase “in relation to” from “committal proceedings” to “the person” is consistent with the view that the right of appeal was to be extended to persons affected by orders in committal proceedings, and not limited to the defendant in them but extends, for example, to a person ordered to produce documents under subpoena. [13] In that context, the phrase “in relation to the person” would emphasise the requirement that the order appealed from have some relationship to the appellant.

11. [23]

    I accept that an order setting aside a subpoena issued at the request of a defendant in committal proceedings is an order “against” and “in relation to” that defendant, and accordingly that an appeal lies, by leave, under s 53(3)(a).

Leave to appeal

1. [24]

   The plaintiff accepts that, insofar as he relies on CAR Act, s 55, leave to appeal is required, due to s 53(3)(a). The plaintiff submits that leave is appropriate as the decision below involved an error of law that can be easily distilled, is contrary to authority of this Court, and is of real significance to both the proceedings and the plaintiff’s right to a fair trial. The defendant did not oppose a grant of leave.

2. [25]

   In the present case, as has been noted, the plaintiff has been committed for trial and an indictment has been presented. In those circumstances, discretionary considerations which tend against interfering arise, as was pointed out in Potier v Maloney: [14]

3. [26]

   There is no practical need in the particular proceedings for relief: there are no further proceedings in the Local Court, where the subpoena issued, and the documents have been produced to the plaintiff, pursuant to the undertaking to which I have referred. The plaintiff submitted that relief should nonetheless be granted, to correct manifest error, and to overcome the potential difficulty in the way of issuing a subpoena from the District Court. As to the latter, it is clear that, faced with the Commissioner’s concession, an application to the District Court for leave to issue a subpoena, if such application be required for more abundant caution, would succeed; in any event, the plaintiff now has the material sought. As to the former, the correct position has already been established by the judgment of Adams J in SW, [15] and will be re-stated by being recorded in these reasons; nothing would be added by formally setting aside the Magistrate’s order.

4. [27]

   In Feeney v New South Wales Police, [16] Adamson J refused leave to appeal for somewhat similar reasons:

5. [28]

   Similar considerations apply here, given the independence of the proceedings on indictment in the District Court from the committal proceedings that preceded them.

6. [29]

   Moreover, for the reasons that follow, I do not consider that it is clear that the subpoena was wrongly set aside, although the reason relied on by the Magistrate was incorrect. This question arises because of the nature of committal proceedings, and in particular the fact that there is now no facility for a defendant to adduce evidence in them. The nature and procedure in committal proceedings was radically changed by the (NSW) Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 (“the 2017 Act”), which commenced on 30 April 2018. An outline of the current procedure is provided by CPA, s 55:

7. [30]

   Provision is made for examination of prosecution witnesses (at ss 82-92); in the second reading speech for the 2017 Act, the Attorney-General the Hon Mark Speakman observed that these “hearings may assist the parties to assess better the case against the accused and to facilitate further negotiations about the charges and possible offers to plead guilty”. [17] However, there is no opportunity for a defendant to adduce evidence in committal proceedings.

8. [31]

   As was also explained in the second reading speech, the substantive committal decision and committal hearings were abolished, so that magistrates are no longer required to consider the evidence and determine if there is a reasonable prospect that a jury, properly instructed, would convict the accused person of the offence. Instead, magistrates are required to be satisfied that the new steps certifying the charges and holding a case conference have been completed before committing the matter to a higher court for trial or sentence. [18]

9. [32]

   There is no statutory obstacle to the issue of a subpoena in committal proceedings. As the plaintiff submitted, a subpoena to produce can be issued under CPA, s 222, which provides:

10. [33]

    Although s 222 appears in Part 3 (Attendance of witnesses and production of evidence in lower courts) of Chapter 4 (Summary procedure) of the CPA, and Chapter 4 applies (by s 170) “to or in respect of proceedings for summary offences, including proceedings for indictable offences that are being dealt with summarily”, s 222 is made applicable to committal proceedings by s 58, which provides:

11. [34]

    However, the question remains, for what legitimate forensic purpose could a defendant issue a subpoena in committal proceedings, in circumstances where there is no facility for a defendant to adduce evidence? The plaintiff submitted that such purposes might include informing the defendant in connection with the case conference, and potentially assisting in the examination of witnesses ordered to attend pursuant to CPA, s 91. The latter is certainly at least arguable: a subpoena might obtain a document which could be used in cross-examination of a prosecution witness. It is less clear to me that obtaining a document to better inform the defendant (or the prosecutor) for the purpose of a case conference is a legitimate forensic purpose: it is not for the purpose of adding, in any way, to the relevant evidence in the committal proceedings.

12. [35]

    As this issue – a potentially important one – was not the subject of full argument, it is undesirable that I express a concluded view. But it is an additional reason for declining leave to appeal.

13. [36]

    Further, the consequential relief sought by the plaintiff – production to this Court, and access – is unnecessary and of doubtful availability. CAR Act, s 55(3)(a), provides:

14. [37]

    That section cannot mean that the appellate court can make any other order at all: it must be construed in the context that it is a power associated with allowing an appeal. There is no further proceeding in this Court ancillary to which production to this Court would be appropriate. What the plaintiff really wants is for the material to be available in connection with the proceedings in the District Court.

15. [38]

    In Warburton v Director of Public Prosecutions (NSW), [19] Schmidt J quashed an order of the Local Court setting aside a subpoena during a committal hearing, but simply remitted the matter to the Local Court, though it is not apparent that any other relief was sought. In Williams v Cronin, [20] s 55(3)(a) was utilised, by consent, to make access orders in this Court to documents produced on subpoena in the Local Court; however, that was an order the Local Court could itself have made, and was the exercise by an appellate court of its jurisdiction to make the order which ought to have been made below, where the documents had already been produced to the Local Court. Neither case supports an order for production to this Court of documents required to be produced by subpoena to the Local Court.

16. [39]

    For my part, I doubt that an order for production to this Court would be within s 55(3)(a), and even if it were that it would be a proper order to be made. However, yet again in a context where the issue has not been the subject of full argument, it is undesirable that I express a concluded view, and as the plaintiff has access to the documents in any event pursuant to the undertaking given by the Commissioner, it is quite unnecessary to do so.

17. [40]

    In circumstances where the plaintiff has been committed for trial and an indictment has been presented, where the order of the Local Court has no ongoing practical effect, where it is unclear that there was a legitimate forensic purpose for the issue of the subpoena in committal proceedings, where it is doubtful that the consequential relief sought by the plaintiff can be granted, where there would be no utility in remitting the matter to the Local Court, and where in any event the plaintiff now has access to the material sought under the subpoena, the preferable course is to refuse leave to appeal.

Alternative relief: certiorari and declaration

1. [41]

   As I have concluded that an appeal lies, by leave, under CAR Act, s 53(3)(a), it is unnecessary to consider the plaintiff’s alternative application for an order in the nature of certiorari. My above reasons for refusing leave to appeal would also have resulted in my refusing certiorari for discretionary reasons.

2. [42]

   The plaintiff also sought a declaration that CPA, s 283C(5), does not prevent a recorded interview with a vulnerable person being produced in answer to a subpoena. That was sought so that the defendant cannot avoid production in the District Court if a similar subpoena be issued there. The declaration sought is said to have ‘real utility’ because it can be used to issue a subpoena in the same terms in the District Court if needed.

3. [43]

   As the plaintiff now has access to the material, there is no utility in facilitating its production to the District Court. In substance, the declaration would be an advisory opinion expressed in general terms (extending beyond the particular parties). Insofar as it is desirable to resolve the question concerning the effect of s 283C(5), that will sufficiently be done by these reasons recording my opinion that the provision does not prevent the production of a recorded interview with a vulnerable person pursuant to a subpoena.

Extension of Time

1. [44]

   The summons was required, by SCR, Pt 51B r 5(3), to be filed within 28 days of 17 August 2020, being the date of the Magistrate’s decision. It was not filed until 22 September 2020, which was eight days out of time. The plaintiff explains the delay by reference to “various procedural steps required to be taken by the Legal Aid Commission” prior to filing the summons. The defendant does not oppose the extension.

Costs

1. [45]

   In its written submissions, the defendant agreed to pay the plaintiff’s costs. Although I propose to dismiss the summons, in circumstances where the proceedings were the result of an erroneous decision made by the Magistrate on and in accordance with the defendant’s application, the defendant may be seen as bearing responsibility for these proceedings. Notwithstanding that I decline to grant any relief beyond the undertakings which have been given, those undertakings themselves represent a measure of success for the plaintiff.

Orders

1. [46]

   For the foregoing reasons, my orders are:

   1. (1)

      Pursuant to SCR, Pt 51B r 5(5), extend time to commence these proceedings to 21 September 2020;

   2. (2)

      Dismiss the summons;

   3. (3)

      By consent, order that the defendant pay the plaintiff’s costs.