Fantakis v Local Court of New South Wales

HIS HONOUR:

The application for leave is brought pursuant to s 53(3) of the Crimes (Appeal and Review) Act 2001 (NSW) (“Appeal and Review Act”). The application is out of time by three months (Pt 51, r 6(1) Supreme Court Rules 1970).

In that pleading, the plaintiff also sought to invoke the Court’s supervisory jurisdiction pursuant to s 69 of the Supreme Court Act 1970 (NSW).

By a separate Notice of Motion, dated 12 June 2020, the plaintiff seeks a stay of his Local Court criminal proceedings (in which the subpoena issued) pending the outcome of this application. The Local Court proceedings are part heard before his Honour and are due to resume on 27 July 2020.

In the course of the proceedings before me on 17 July 2020, the plaintiff abandoned any reliance upon s 69 of the Supreme Court Act. I also indicated, without opposition from the defendant, that I proposed to grant to the plaintiff an extension of time pursuant to Pt 51 r 6(2)(a) of the Supreme Court Rules within which to bring these proceedings. My reason for doing so is that the plaintiff appears to have made a genuine mistake as to how much time he had within which to file an appeal. Because the plaintiff is in custody, I accept that there are additional difficulties confronting him in meeting time limits.

I also indicated to the parties that I proposed to grant a stay of the Local Court proceedings, due to resume on 27 July 2020, until further order of the Court. My reason for doing so was that I was not sure whether I could deliver judgment in the matter in sufficient time to allow those proceedings to resume on 27 July.

Accordingly, the issues which arise for this Court’s determination are:

On 7 June 2013, the plaintiff was charged with two offences of intimidate police under s 60(1) of the Crimes Act 1900 (NSW) being the two substantive offences that are currently part heard before his Honour in the Local Court. The first offence (Sequence 2) asserts a timeframe between 25 July and 31 August 2002. The second offence (Sequence 3) has a timeframe between 1 September 2012 and 20 May 2013. The complainant is Detective Sergeant McGee. Detective Sergeant McGee was also in charge of a homicide investigation (Strike Force Flaggy) which commenced on 13 August 2011 and resulted in the arrest and conviction of the plaintiff for the offence of murder in relation to which he was incarcerated on 3 October 2013.

In the Local Court proceedings, the plaintiff is charged with a co-offender, Mr Woods. The matters have been before the court on many occasions and have been listed for hearing on many occasions. Part of the delay in having the matter determined was due to the murder charge which at the time was pending in this Court. The hearing for the intimidate police charges commenced before Rodgers LCM on 22 July 2019 and ran for three days. It was then adjourned part heard to 9 December 2019. The subpoena, the subject of this application, was filed by the plaintiff in the Local Court on 15 November 2019. The matter was listed for return of subpoena on 28 November 2019. On that date, counsel retained by the Commissioner appeared and applied to set aside the subpoena. The hearing of that matter proceeded before Rodgers LCM on 9 and 16 December 2019. A copy of the schedule to the subpoena is annexed hereto and is marked “Annexure A”.

A substantial quantity of documents was placed before his Honour and written submissions were received both from the plaintiff and from the Commissioner. One of those documents to which Rodgers LCM specifically referred, was a document entitled “Subpoena Submission”. It comprised not only submissions but had annexed to it many documents including a further written submission in the form of a letter dated 27 November 2019 addressed to the Crown Solicitor’s Office. That document set out each item on the schedule of the subpoena and identified what the plaintiff asserted was its legitimate forensic purpose.

Rodgers LCM did not refer in detail to each of the supporting documents provided by the plaintiff but indicated “I have had very close regard to the entirety of the material” (16/12/19, T12.48). It is apparent from other parts of his Honour’s judgment that he had done so.

His Honour set out the relevant principles applicable to setting aside a subpoena, together with a brief analysis of the cases, i.e. Attorney General for New South Wales v Dylan Chidgey (2008) 182 A Crim R 536; [2008] NSWCCA 65; R v Saleam [1999] NSWCCA 86 and Alister v The Queen (1984) 154 CLR 404; [1984] HCA 85. Those principles were:

It was the plaintiff’s case before his Honour that the intimidation charges were instituted for collateral purposes. The plaintiff asserted that they were generated on 6 June 2013, the day following his attendance at the Parramatta Local Court where he was granted access to a telephone application in relation to two search warrants that had been applied for by Constable Scipione on 13 August 2011. The plaintiff submitted that this warrant application was then made the subject of a non-disclosure order. It was the plaintiff’s contention before his Honour that the intimidation charges were a knee-jerk reaction by Strike Force Flaggy because of what he had discovered on 5 June 2013. The plaintiff submitted that correct procedures had not been followed when the application for the search warrants was made.

The plaintiff submitted that officers from Strike Force Flaggy, including the complainant, were the persons doing the intimidating. The plaintiff submitted that this bad behaviour would be revealed by the production of the documents sought in the subpoena. The plaintiff submitted that it would be the inability of the police to produce some of the documents sought that would also assist the defence case.

The plaintiff submitted that the credibility of Detective Sergeant McGee was fundamental in the intimidation matters. He identified the legitimate forensic purpose for issuing the subpoena as seeking documents which would allow him to test the credibility, reliability, integrity and intention of Strike Force Flaggy and Detective Sergeant McGee.

His Honour recognised that the credibility of Detective Sergeant McGee would be a factor that he was going to have to consider in relation to a number of issues but particularly the requirement for the prosecution in the intimidation counts to provide proof that she was in fact intimidated.

In order to understand the matters raised in the plaintiff’s appeal, it is necessary to substantially set out his Honour’s judgment:

It was for those reasons that his Honour set aside the subpoena, finding that there was no legitimate forensic purpose for any of the documents sought by it and that in any event it was not “on the cards” that relevant documents of assistance to the plaintiff’s case would be produced in answer to the subpoena.

The plaintiff relied upon two grounds of appeal.

The plaintiff’s right to appeal from the decision of his Honour is governed by s 53(3)(b) of the Crimes Appeal and Review Act. That section relevantly provides:

As can be seen from its terms, the right of appeal is limited. A person against whom an interlocutory order has been made by the Local Court in summary proceedings can appeal to the Supreme Court against the order but only upon a ground that involves a question of law alone and only by leave of the Supreme Court. There was no issue in the proceedings before me that the decision of his Honour with respect to the subpoena was interlocutory in nature: Mackintosh v Commissioner of Police (NSW) and Ors [2010] NSWSC 1064; Feeney v NSW Police [2017] NSWSC 190 at [1].

The avenue of appeal under s 53(3)(b) is narrowly confined to a “ground that involves a question of law alone”. There is a question of law alone if the question of law can be stated and considered separately from the facts to which it may be connected in a given case (Williams v The Queen (1986) 161 CLR 278 at 287; [1986] HCA 88; Franklin v Commissioner of Police and Anor [2018] NSWSC 310 at [19].

Questions concerning any application of correct legal principle to the facts of a case are questions of mixed fact and law: NAR v PPC1 (2013) 224 A Crim R 535; [2013] NSWCCA 25 at 539 [14]; PPC v Williams (2013) 238 A Crim R 25; [2013] NSWCCA 286 at 35 [51].

Generally, leave to appeal in a case involving a matter of practice and procedure (such as subpoenas) should not readily be granted unless an appropriate case is made out of an error in principle which is apt to cause an irregularity or injustice: NAR v PPC1 at 539-540, [17]; PPC v Williams at 35, [52].

As was observed by Johnson J in Franklin v Commissioner of Police and Anor:

In certain circumstances a failure to provide adequate reasons can constitute an error of law such as will come within the narrow ambit of s 53(3)(b). This was made clear by Garling J in Feeney v NSW Police [2017] NSWSC 190 at [27]-[28] and [31]:

The decision of his Honour in this case is not open to that kind of challenge. With great respect, his reasons for reaching the decision which he did were comprehensive, logical and compelling.

It is not without significance that in his written submissions and statement of grounds, the plaintiff did not address the issue of leave. As a result rather than making submissions as to errors of law alone, he addressed on questions of fact and mixed fact and law which cannot be the subject of an appeal under s 53(3)(b) of the Appeal and Review Act.

Accordingly, even though a failure to provide adequate reasons can give rise to an error of law, an error of that kind did not occur here.

The plaintiff submitted in support of the Grounds of Appeal dated 2 July 2020 that his Honour “failed to furnish adequate reasons and overlooked material evidence”. It should be noted that no affidavits were read during the hearing of the Commissioner’s application in the Local Court. There were a number of documents placed before the Court but their provenance was never formally proved, nor was their relevance clear. In relation to many of the documents relied upon by the plaintiff there was no rational or relevant connection between them and the case which the plaintiff was seeking to put forward. Even with documents which had some marginal relevance there was no explanation of how they would be of assistance to the plaintiff’s case.

Those documents, supplemented by the plaintiff’s submissions, involved unsupported allegations and speculation. In none of the material in front of his Honour was there a basis for establishing that the items sought in the subpoena were likely to materially assist the plaintiff’s case. It is trite to observe that whatever be the purpose advanced as supporting the subpoena, there must still be a reasonable or definite basis for believing that the material sought would assist the plaintiff.

Contrary to the plaintiff’s submissions in support of this ground, it is clear from the transcript that his Honour did in fact have regard to the plaintiff’s numerous allegations of police misconduct and which the plaintiff asserted would impact adversely on the credibility of the complainant.

In those circumstances, it was well open for his Honour to find:

As his Honour made clear, what had to be proved by the evidence in the murder matter was very different to what had to be proved to establish the intimidation offences. A general assertion that material, if produced, would assist in the cross-examination of the complainant, was not a sufficient basis. For a successful challenge to the complainant’s credibility, it was necessary to identify documents which had a rational and relevant connection to the intimidation charges. This was not done. The authorities establish that whatever purpose is advanced as supporting the subpoena, there must still be a reasonable or definite basis for believing that the material sought would assist the plaintiff. There will be no legitimate forensic purpose if all that a party is doing is trying to get hold of documents to see whether they may assist him in his case. A suspicion that the subpoenaed documents will or may assist the plaintiff is not sufficient. Concrete or definite grounds must support that belief.

It will therefore ordinarily be necessary for the subpoenaing party to identify the issue or issues in dispute at trial, what the subpoenaing party’s case will be on that issue or those issues, how the subpoenaed documents will assist the subpoenaing party in his case and what are the grounds for believing that the documents will in fact assist.

Despite the detailed nature of the judgment, it was still delivered ex tempore in a busy Local Court and appropriate allowance should be made for that fact. This would certainly explain the lack of reference in his Honour’s decision to every specific allegation raised by the plaintiff in support of his asserted legitimate forensic purpose. A failure to refer to every piece of evidence does not give rise to a reasonable inference that such evidence was “overlooked” particularly when his Honour stated more than once in the course of his judgment that he had taken into account all of the documents provided to him.

It follows that this ground of appeal has not been made out. The mere identity of a question of law, i.e. failure to provide adequate reasons, is not sufficient. The extent to which there has been no references to a particular document which seems to be the basis for this ground of appeal does not allow the plaintiff to obtain leave under the section. At best, if such an allegation were made out, i.e. that not all the evidence was taken into account, this would involve a mixed question of fact and law and so would still not come within the section.

This ground of appeal and the balance of the plaintiff’s written submissions provided on 2 July 2020 do not identify any error of law. The submissions in support of Ground 2 are more analogous to submissions that could and should have been made at first instance before his Honour. Plainly an application to the Supreme Court for leave to appeal from an interlocutory order made by a magistrate during criminal proceedings, does not give rise to a de novo hearing.

The substance of the plaintiff’s complaint under this ground is not based on an error of law but challenges the factual findings made by his Honour. The process provided for by s 53(3)(b) does not give rise to a merits review. This is particularly so in circumstances where his Honour made different factual findings to those urged upon him by the plaintiff.

His Honour summarised the plaintiff’s case in support of the subpoena and set about analysing the subpoena in the light of the plaintiff’s submissions and the test set out in Attorney General for New South Wales v Dylan Chidgey (2008) 182 A Crim R 536; [2008] NSWCCA 65. In doing so, his Honour did have proper regard to the substantial amount of material provided to him by the plaintiff and there is no suggestion that his Honour did not in fact examine that material.

It follows that I would refuse leave to the plaintiff to appeal from the decision of his Honour. If I am wrong in that decision, and the plaintiff is entitled to leave to appeal, I would dismiss the appeal on the basis identified by his Honour, i.e. the lack of a legitimate forensic purpose and a failure of the evidence to establish that it was on the cards that evidence was available which would assist the plaintiff’s case.

Finally, if I am in error in those two conclusions, I would refuse leave to the plaintiff to rely on s 53(3)(b) of the Appeal and Review Act on discretionary grounds. I would do so on the basis that this case is not an appropriate one for leave to appeal to be granted. As was said in Franklin v Commissioner of Police and Anor at [22]:

The history of the matter tells strongly against a discretionary grant of leave to appeal. The proceedings were commenced in 2013. They have now dragged on considerably beyond the hearing of the murder offence. They have been listed for hearing on many occasion and they have now been commenced before his Honour. They should be allowed to proceed to conclusion without the delay and distraction of practice and procedure matters such as the filing of a subpoena of this kind.

In view of the decision which I have arrived at, I propose to remove the stay preventing the continuation of the proceedings. It is now a matter for the Local Court to relist the intimidation matters for hearing so that they can proceed to completion.

The orders which I make are: