Director of Public Prosecutions (NSW) v Izod; Director of Public Prosecutions (NSW) v Zreika

SIMPSON AJ: On 30 May 2019 a magistrate of the Local Court dismissed criminal charges against two defendants, Michael Izod and Mohammed Zreika. By separate summonses filed on 19 September 2019 the plaintiff, the Director of Public Prosecutions NSW (“the DPP”), challenges those orders. The first summons named Mr Izod as first defendant, and the Local Court of NSW as second defendant. The second summons named Mr Zreika as first defendant and the Local Court of NSW as second defendant. In each case, the Local Court has filed a submitting appearance. The DPP in each case challenges the orders both by way of appeal brought under s 56(1)(c) of the Crimes (Appeal and Review) Act 2001 (NSW) (“the Appeal and Review Act”) and also by invoking the jurisdiction conferred on this court by s 69 of the Supreme Court Act 1970 (NSW). For the latter, he needs and seeks an extension of the time provided by the Uniform Civil Procedure Rules 2005 (NSW), r 59.10(2). That is not opposed by Mr Izod but is opposed by Mr Zreika. The challenges involve consideration of ss 118 and 125 of the Evidence Act 1995 (NSW).

The appropriateness of proceeding both by way of appeal and via the supervisory jurisdiction of this Court was not raised as an issue: see Meagher v Stevenson (1993) NSWLR 736; and the later observations in AB v Director of Public Prosecutions (NSW) [2014] NSWCA 122 at [24]. No point having been taken in that respect, I say no more about it.

On 29 May 2019, pursuant to the Court Suppression and Non-Publication Orders Act 2010 (NSW) the magistrate ordered that, until the court otherwise orders, there be no publication in NSW of certain information, that being:

In the context of these proceedings the order relates to telephone conversations and SMS messages that passed between the defendants on 28 June 2018. Those communications were lawfully intercepted pursuant to a warrant issued under the Telecommunications (Interception of Access) Act 1979 (Cth) on 22 June 2018.

The suppression order has consequences for these reasons. The communications between the defendants to which the order relates lie at the heart of the DPP’s complaint. It is virtually impossible fully to explain the DPP’s challenges or the argument in support of and against them without reference to the content of the communications.

While there may be some doubt whether the suppression order binds this Court, its effect would be entirely nullified if the communications were reproduced in a judgment of this Court, which is then subject to publication and potential republication. I will therefore detail the communications in a confidential addendum to this judgment, to be released if and when circumstances permit.

At least for present purposes the following facts are uncontroversial. Mr Zreika is a solicitor. In 2018 he was engaged to represent Mr Izod, who faced two charges of unlawful possession of property, contrary to s 527C of the Crimes Act 1900 (NSW). The charges were listed for hearing at the Manly Local Court on 28 June 2018. On that morning, commencing at about 6.50am, a series of SMS messages were exchanged between the defendants.

On the same day, at 1.44am, Mr Izod was recorded, in a telephone conversation with an unidentified male, saying that he intended to attempt to seek a doctor’s certificate in order to obtain an adjournment of the hearing of the criminal charges. Later, he was recorded in a conversation with Mr Zreika. In a later conversation (8.33am) with a female, he said that he was awoken by a telephone call (from another person) at 6.00am.

At 9.42am Mr Izod then attended at a medical practice where he consulted Dr James Yu. Dr Yu took a history from and examined Mr Izod. Mr Izod gave a history of experiencing diarrhoea and vomiting from 4.00am. As a result Dr Yu provided Mr Izod with a medical certificate which stated:

At 9.46am Mr Izod sent the certificate by facsimile to Mr Zreika. Mr Zreika appeared on behalf of Mr Izod at the Manly Local Court and sought an adjournment of the hearing. In support of the application for adjournment Mr Zreika presented Dr Yu’s medical certificate. The application was granted and the proceedings adjourned.

On 18 September 2018 Mr Izod was charged, by Court Attendance Notice, with an offence against s 319 of the Crimes Act. On 3 October 2018 Mr Zreika was similarly charged. Section 319 provides as follows:

The Court Attendance Notice in relation to the first defendant particularised the offence in the following terms:

The Court Attendance Notice in relation to Mr Zreika particularised the offence in the following terms:

The substance of the charges against the defendants was that they contrived to procure the adjournment of the proceedings against Mr Izod, Mr Zreika by advising Mr Izod, and Mr Izod by giving a false history to Dr Yu, on the basis of which Dr Yu gave his certificate diagnosing a medical condition from which Mr Izod did not in fact suffer. The act of Mr Zreika alleged to constitute the offence lay in advice he gave to Mr Izod. The result was an adjournment to which Mr Izod was not entitled.

Each charge was listed for hearing before Magistrate Atkinson on 29 and 30 May 2019 at Central Local Court. Both defendants appeared, represented by counsel. The prosecutor proposed to rely on the SMS messages and transcripts of the telephone conversations (to which I will refer collectively as “the communications”) in proof of the offences. At the outset an evidentiary issue arose. Counsel representing the defendants objected to the tender of evidence of the communications, on the basis that they were protected from disclosure by Ch 3, Pt 3.10, Div 1 of the Evidence Act 1995 (NSW). Chapter 3 is concerned with admissibility of evidence. Part 3.10 provides for “Privileges”. Division 1 of Pt 3.10 deals with “Client legal privilege”. Section 118 thereof provides:

By s 125 an exception to the protection provided by s 118 is made in circumstances of “misconduct”. Section 125 provides:

Counsel for the defendants contended that the communications were confidential communications made between Mr Izod as client and Mr Zreika as lawyer (s 118(a)) for the dominant purpose of Mr Zreika providing legal advice to Mr Izod, and were, accordingly, subject to the prohibition, on disclosure provided by s 118. The prosecution contended that the communications were made in furtherance of offences (a separate offence by each defendant) against s 319 of the Crimes Act and that, therefore, by s 125(1)(a), the prohibition on disclosure provided by s 118 was lost.

A voir dire then took place. The issue for determination was whether evidence of the communications was admissible in proof of the s 319 charges (that is the charges that the defendants acted with the intention of perverting the course of justice). All parties proceeded on the common assumption that the issues were identical in relation to the two defendants, and that a finding that the evidence was admissible (or inadmissible) against one encompassed a similar finding in relation to the other.

By s 125(1), the evidence was not rendered inadmissible by s 118 if the communications were made in furtherance of the s 319 offences. By s 125(2) that could be found if:

The prosecution tendered what was called an “Expert Certificate” by Dr Yu. In fact, the “Expert Certificate” was a factual account of his consultation with Mr Izod and the circumstances in which he provided the medical certificate. Dr Yu said that Mr Izod was complaining of diarrhoea and vomiting from 4.00am that morning, but said that he was “feeling better now”. This caused Dr Yu some surprise since, he said, patients usually attend when they are “feeling really bad not getting better.” Dr Yu conducted an examination of Mr Izod and found only one of the symptoms usually associated with gastroenteritis. That was increased bowel sound, which Dr Yu said could also be attributed to other causes such as withdrawal from narcotic drugs. All other objective signs were normal. Dr Yu said:

Dr Yu gave oral evidence and was cross-examined. He said that he had made a record in his notes that Mr Izod appeared to be “a bit uncomfortable all over.”

The evidence and the argument concluded on 29 May 2018.

The magistrate reserved her decision overnight. The following morning she delivered what she called an “ex tempore” judgment. She reviewed in some detail the evidence and the authorities to which she had been referred. The substance of her conclusion was that “misconduct has not been established” and, accordingly, the privilege conferred by s 118 of the Evidence Act had not been lost. The evidence of the communications was therefore inadmissible in proof of the s 319 charges.

Since that evidence was essentially the prosecution case, the prosecution called no evidence on the s 319 charges and the magistrate dismissed each. It is those orders that the DPP now challenges. Although he does so by two avenues, the challenges are identical. They call for examination of the reasons given by the magistrate.

The magistrate referred at some length to authorities on which the parties relied. She then addressed the questions in issue. She first found that the communications were confidential, in the sense required by s 117, in the context of a client/lawyer relationship. She said that the communications were “being done in a confidential way” and that Mr Zreika was providing legal advice with respect to an application for an adjournment. The conclusion that the communications were confidential has not been challenged by the DPP.

The magistrate then proceeded to deal with the essential questions, which (as recorded in the transcript) she identified as follows:

She then referred to some of the content of the conversations. As recorded in the transcript, said:

She then made some presently irrelevant general observations about the provision of medical certificates in the Local Court and said:

Her Honour then discussed some authorities to which she had been referred and said:

The grounds of challenge, both with respect to s 56(1)(c) of the Appeal and Review Act, and s 69 of the Supreme Court Act, fall into four categories. The principal complaint by the DPP is that the magistrate misconceived the question she was required to determine on the voir dire and applied a test that was erroneous in law. The DPP relied on a number of passages in the reasons, all of which are contained in the extracts above. Specifically, the DPP complained of the directions the magistrate gave herself in the passages italicised above, as follows:

The DPP contended that these passages indicate that the magistrate proceeded on the basis that, for the s 118 privilege to be lost, it was necessary that the prosecution establish as a fact that the communications were made in furtherance of the commission of the offence in question. The correct approach, the DPP contended, was to inquire whether there were reasonable grounds for finding that the communications were made in furtherance of the commission of that offence.

The defendants did not dispute that the DPP correctly articulated the test. They began with the argument that the judgment, having been delivered ex tempore, should:

In support of that contention reliance was placed on the decision of the High Court in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6, which adopted as “well settled” similar reasoning in Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287; [1993] FCA 456. Those decisions were concerned with review of administrative action, in which it is necessary to distinguish between review “upon proper principles” and a merit review of the administrative decision in question.

Nevertheless, I would accept that, if the magistrate’s reasons disclose that she appreciated, and, more importantly, applied, the correct test, then an occasional infelicitous slip of the tongue should not be allowed to contaminate the reasons as a whole.

The defendants then argued that there are to be found in the judgment passages other than those cited by the DPP that indicate that the magistrate was aware of and correctly stated the relevant test. That could be seen particularly from her recital of s 125(2). In addition, the magistrate directed herself that she was not “on the point of making a decision on the case itself” nor “at the point where I have to find things proven to the requisite criminal standard.”

In my opinion the correct construction of the judgment, taken as a whole, is that the magistrate did misconceive the question submitted to her and applied the wrong test. What s 125(2) required (for the purposes of this case) was an evaluation of evidence said to provide the basis for a conclusion that there were reasonable grounds for finding that the communications in question were made in furtherance of the s 319 offences. That is a lesser test than that can be discerned to have been applied from the extracts above, in which the magistrate can plainly be seen to have asked whether, in fact, the communications were made in furtherance of the offences.

The difficulty with the defendants’ propositions is that the magistrate’s reasons reveal, not mere infelicity of language, but, on more than one occasion, the application of a test of finality. This is, perhaps, most clearly demonstrated in the ultimate finding that misconduct had not been established, but can also be seen in the various earlier passages. That is not neutralised by the observation (in the context of s 118) that she was not on the point of reaching a final decision. That merely showed that she was aware that the decision she was making was one with respect to the admissibility of evidence. It did not establish that she applied the statutory test to that question. She did not.

I am satisfied that the DPP’s first ground has been made good.

The erroneous approach constitutes both jurisdictional error for the purposes of s 69 of the Supreme Court Act and error of law for the purposes of s 56(1)(c) of the Appeal and Review Act. That is sufficient to dispose of the summons. The remaining grounds can therefore be dealt with briefly.

Grounds 2 and 3 allege, respectively, that the magistrate took into account irrelevant considerations, and failed to take into account relevant considerations.

The irrelevant considerations asserted were:

The latter is clearly an irrelevant consideration. I am not persuaded that the first was. Among the things that the magistrate had to determine was whether there were reasonable grounds for finding that the offence of acting to pervert the course of justice had been committed. Relevant to that was whether Mr Izod in fact was suffering from gastroenteritis. And relevant to that (although far from conclusive) was Dr Yu’s physical examination of Mr Izod. I would therefore reject the first part of ground 2.

It is difficult to understand the import of the magistrate’s observation that Magistrate Ryan was “entitled” to adjourn the proceedings. Although it was, in my opinion, an irrelevant observation, it appears to have had little bearing on the decisions. I would therefore reject ground 2.

There is, however, considerable substance in the argument that the magistrate failed to take into account relevant considerations. Four such considerations were identified. These concerned:

All of those considerations were advanced as, and were, relevant to whether there were reasonable grounds for finding that the s 319 offences had been committed, and whether there were reasonable grounds for finding that the communications were made in furtherance of those offences.

The counter argument of the defendants began with the proposition that the considerations that the DPP claimed were not taken into account were “quintessentially findings of fact”. That is not correct. What the prosecution claimed in the Local Court, and the DPP here asserts, is that each of the four considerations reflects an aspect of the evidence on which it relied and which was relevant to the ultimate determination whether the s 125(2) test had been met. The defence argument proceeded, based on administrative law principles, to assert that a ground of failure to take into account relevant considerations is only made out where the relevant statute, on its correct construction, requires that those considerations be taken into account.

That argument is misconceived. The DPP’s point is that the four considerations were all relevant to the assessment of whether there were “reasonable grounds for” making the relevant findings. They reflect an argument advanced to the magistrate which, if considered, may have affected the outcome of the determination. Failure to take into account the four considerations was an error of law.

If it were necessary to do so, I would uphold ground 3.

The final ground is that the magistrate failed to give adequate reasons for her conclusions. I reject that ground. Erroneous reasoning is not equivalent to inadequacy of reasons. Indeed, the DPP’s point is that the reasons expose error. In my opinion the magistrate’s reasons adequately explain the path to her conclusions.

Section 59(2) of the Appeal and Review Act relevantly provides:

The orders sought by the DPP are:

In my opinion it is appropriate that orders to that effect be made. It is therefore unnecessary to consider what orders could or should be made with respect to the s 69 proceedings. They would not, in any event, be different in substance.

The orders I propose to make in each case that the order of the magistrate be set aside and the matter be remitted to the Local Court to be dealt with according to law. The location of the court and the identity of the magistrate to conduct the hearing is a matter for the administrative arrangements of the Local Court.

That leaves the question of an extension of time in which to bring the s 69 proceedings, which is opposed by Mr Zreika. It was accepted on behalf of Mr Zreika that the s 56(1)(c) appeal was brought within time. The issues in the two proceedings are identical. That makes the objection somewhat futile. In any event, the delay was of relatively short duration.

The orders I make are: