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Supreme Court of South Australia Decisions |
COURT
IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA
KING CJ(1), BOLLEN(2) AND MULLIGHAN(3) JJ
CWDS
Criminal law and procedure - jurisdiction, practice and procedure - Summary
proceedings in Magistrates Court - subpoena duces tecum
- validity of
requirement for production of evidentiary material prior to trial - objects of
subpoena duces tecum considered - distinguished
from discovery - order by
magistrate to set aside subpoena for Production before trial of statements of
witnesses for prosecution
and other relevant evidentiary material - error of
law - order quashed.
HRNG
ADELAIDE, 14 February 1994
#DATE 30:3:1994
Counsel
for plaintiff: Mr M L Abbott QC with
Mr C J Caldicott
Solicitors for plaintiff: Caldicott
and Co
Counsel for respondent: Ms A M Vanstone
Solicitors for respondent: Director of Public Prosecutions
(SA)
ORDER
Decision of the magistrate setting aside the summons quashed.
JUDGE1
KING CJ The plaintiff
in this action for judicial review of a decision of a
magistrate, is the defendant in proceedings in the Magistrates Court. He is
charged on Information with the crime of indecent assault of a girl of about
14 years of age. By virtue of s.5(3)(a)(iii) of the Summary Procedure Act
1921 the offence charged is a minor indictable offence. No election having
been made in accordance with the Rules of Court for trial
in a superior court
the charge must "be dealt with in the same way as a charge of a summary
offence", s.103(3). The plaintiff has indicated to the Magistrates Court that
there will be a plea of not guilty. The procedure in the case of a plea
of
not guilty is set out in sections 68 and 69. No date has yet been fixed for
the hearing or for a pre-trial conference under Rule 26.05 of the Rules of the
Magistrates Court.
2. The plaintiff has issued a summons out of the Magistrates Court pursuant
to s.20 of the Magistrates Court Act 1991, for the production of evidentiary
material before the Court. The summons was directed to the Commissioner of
Police and was made
returnable for the 18th May 1993. It required the
production of the following evidentiary material:
"1. Copy of the original
statement or complaint made by Peta
Marie Busk.
2. Statement of complaint made by Peta Marie Busk.
3. Statement of Police
Officer who first spoke to Peta Marie
Busk.
4. Copies of any medical examination that the victim
underwent as a result
of the alleged allegation. 5.
Statement of Police Officers who interviewed the defendant
Steven John Carter.
6. Record
of interview between the Police and the defendant
Steven John Carter.
7. Photographs of the victim Peta Marie Busk taken
by
medical personal (sic) or by Police."
3. A police prosecutor acting on behalf of the Commissioner of Police applied
to have
the summons set aside. There was oral argument before a magistrate.
The learned magistrate set the summons aside. The plaintiff
instituted this
action for judicial review to have that decision quashed. The action came on
for hearing before a judge of this
Court. His Honor agreed with the
magistrate's decision and dismissed the action. The plaintiff has appealed to
this Court.
4.
The power of the Magistrates Court to issue a summons in the nature of a
subpoena duces tecum is contained in s.20 of the Magistrates Court Act and is
a power to require a person to appear before the Court "to produce evidentiary
material". "Evidentiary material" is defined
in s.3 as meaning "any document
object or substance of evidentiary value in proceedings before the Court and
includes any document object
or substance that should, in the opinion of the
Court, be produced for the purpose of enabling the Court to determine whether
or
not it has evidentiary value." The language of this section differs from
that of s.23 of the Justices Act under which Hunt v Wark and Ors (1986) 40
SASR 489 was decided, but I think that the following passage from my judgment
in that case
at p.493 is equally applicable to the present section:
"It is not necessary to construe those words with undue
strictness
so as to refer only to documents which are
admissible evidence. The words are wide enough to include
documents reasonably
needed for the cross-examination of a
witness, such as statements by the witness with respect to
matters at issue in the
case."
5. The material sought must possess "evidentiary value" in some sense. The
same idea is, I think, expressed in the judgments
of the Court of Criminal
Appeal, New South Wales, in R v Saleam (1989) 39 A Crim R 406 by the use of
the expression "legitimate forensic
purpose".
6. I have no doubt that each of the items sought in the subpoena possesses
evidentiary value in the relevant sense.
Item 6 has been produced and is not
in contention. Items 4 and 7, if they exist, have by their nature as
described in the subpoena,
potential evidentiary value and may well be
admissible evidence. The remaining items relate to statements made by
necessary or likely
witnesses and are therefore proper subjects of a subpoena
duces tecum; Maddison v Goldrick (1976) 1 NSWLR 651 at p.666; R v Saleam
supra
at p.410. A document may have evidential value, in my opinion, not only
because it is admissible in evidence, but also, even
if it is not so
admissible of itself, because it provides material of value for
cross-examination, Maddison v Goldrick supra, or
discloses "information which
may be established in some other admissible form"; R v Saleam supra at p.413.
7. Both the learned
magistrate and the learned judge on appeal considered
that the subpoena was merely "fishing".
8. Emphasis was placed upon the appellant's
lack of knowledge as to the
contents or even the existence of the documents. A party's lack of knowledge
of the existence or contents
of the material sought is not of itself, however,
a valid objection to a subpoena; National Employers' Mutual General
Association
Ltd v Waind and Hill (1978) 1 NSWLR 372 at p.382. Alister v The
Queen [1983] HCA 45; (1983-84) 154 CLR 404 is an instance of a valid subpoena for the
production of documents the existence of which was not known to
the accused
with any specificity. Hunt v Wark (1985) 40 SASR 489 is plainly
distinguishable. In that case the documents were sought
to be produced for
the purpose of assisting a ground for the discretionary rejection of evidence
based upon possible improper use
of an agent provocateur. There was before
the Court, however, no material capable of raising any serious issue of
impropriety on
the part of the police. There was no reason to suppose that
the documents sought, even if they existed, would have any bearing on
any
issue capable of being raised by the evidence. The purpose was purely
"fishing", that is to say to see whether anything might
turn up in the
documents which might provide a ground for the rejection of evidence. This
case is quite different. The documents
sought to be produced by the present
subpoena must, by their nature, have a bearing on the issues in the case and
may well have evidentiary
value. To my mind the description "fishing" is not
properly applied to such a subpoena.
9. The real objection which is taken to
the subpoena relates to its
requirement for the production of the material before the hearing of the
charge. It was argued by counsel
for the respondent that that was an
impermissible attempt to use the subpoena process to obtain discovery in a
criminal process.
Discovery is not available in criminal proceedings, see
generally R v Sobh (1993) 65 A Crim R 466, and that rule is unaffected by
certain observations in the judgments in Alister's case; R v Saleam supra at
p.410. It is not permissible to use the subpoena process
to obtain what is in
reality discovery of documents; The Commissioner for Railways v Small (1938)
38 SR NSW 564 esp at p.575.
10.
Discovery is the process by which a party obtains disclosure and
production for inspection of documents relevant to the case. It
demands a
judgment by the party who must make discovery as to whether documents are
relevant. The party who is required to make
discovery must disclose all
relevant documents whether or not they possess evidentiary value, and that
party is required to make
the judgment as to relevance. A subpoena, on the
other hand, demands production for the purpose of the case of documents which
are
identified either specifically or at least generically. "It does not
follow, however, that because the party who issues a subpoena
is unaware of
the precise description of a particular document, or whether a particular
document or documents is in the possession
of the witness, or even whether it
exists, or is unaware of its contents, that the subpoena, or even a subpoena
in general terms,
amounts to the use of the subpoena for the purpose of
'discovery'. To state it does involves a misconception of the different
functions
of discovery and a subpoena for production." National Employers'
Mutual v Waind and Hill supra at p.382.
11. Generally speaking
a subpoena duces tecum in criminal proceedings
requires the production of the material at the trial. In order to consider
whether
such a subpoena may also be used to require production prior to a
summary trial, it is necessary to consider the legal process involved
in
having a witness bring documents to Court, and their use thereafter. This
procedure was described by Moffitt P in National Employers'
Mutual v Waind and
Hill supra at p.381 as follows:
"As Jordan CJ pointed out in Small's case (1938 SR (NSW)
564, at p.574;
55 WN 215 and, as appears in Burchard's case
(1891) 2 QB 241, at pp.247,248 there are at least two steps
in the procedure
of having a third party bring documents to
court, and in their use thereafter. Indeed, on a correct
view, there are three
steps. The first is obeying the
subpoena, by the witness bringing the documents to the court
and handing them to the judge.
This step involves the
determination of any objections of the witness to the
subpoena, or to the production of the documents
to the court
pursuant to the subpoena. The second step is the decision of
the judge concerning the preliminary use of the
documents,
which includes whether or not permission should be given to
a party or parties to inspect the documents. The
third step
is the admission into evidence of the documents in whole or
in part; or the use of it in the process of evidence
being
put before the court by cross- examination or otherwise. It
is the third step which alone provides material upon which
ultimate decision in the case rests. In these three steps
the stranger and the parties have different rights, and the
function of the judge differs. Upon the first step the
person to whom the subpoena is addressed may seek to, and
have,
the subpoena set aside on the ground that it was
improperly used and an abuse of the power to compel the
production of documents
in any one of a number of ways."
12. The use to which the produced documents are put is determined by the
Court thereafter.
13.
The subpoena duces tecum is issued by "the Court" pursuant to s.20 of the
Magistrates Court Act and requires the witness to appear before "the Court" to
produce the evidentiary material. "Court" is defined in s.3 as the
Magistrates Court of South Australia. That Court is a court of record with a
permanent structure established by the Act.
There is nothing in the Act which
precludes a subpoena requiring production of material to the Court before the
hearing of the charges.
On the contrary s.20(2) which authorizes a subpoena
requiring production to an officer of the Court, appears to envisage
production before the hearing.
14. I construe the reasons of the learned magistrate to mean that a summons
issued pursuant to s.20 of the Magistrates Court Act cannot, as a matter of
law, validly require production of material at the stage at which this summons
was issued. I think that that
is an error of law. The law does not restrict
the time for production of material in response to a subpoena duces tecum to
any particular
stage of the proceedings. If application is made to set the
subpoena aside and it appears that it is not practicable at that stage
of the
proceedings to identify the issues sufficiently to determine whether the
subpoena is too wide or otherwise oppressive or inappropriate,
the subpoena
may be set aside on that ground or the date for production may be postponed.
That, however, was not the ground on which
the learned magistrate acted. Her
decision was based upon a legal misconception as to the purpose of a subpoena
duces tecum, on
a legally erroneous view that the subpoena in the present case
was invalid as an attempt to obtain discovery in a criminal process
and on the
legally erroneous view that a summons to produce documents before the hearing
is "an improper use of the process". The
materials specified in the summons
are clearly capable of possessing evidentiary value and they are sufficiently
described. There
could be no sound objection that the summons is too wide or
is otherwise oppressive or inappropriate. There is no valid ground for
setting the summons aside. The decision to do so resulted from an erroneous
understanding of the law.
15. The learned judge on
appeal was influenced by the difference in the
procedures applicable to cases in which there is to be a trial in a superior
court
and to cases which are to be tried summarily. He contrasted the right
to a preliminary hearing in the former class of case, with
the attendant
obligation on the prosecution under s.104 of the Summary Procedure Act to file
and serve statements of witnesses, with the absence of equivalent provisions
where the matter is to be disposed of summarily.
He considered that a
requirement for the production of statements of witnesses and other
evidentiary material upon which the prosecution
might rely, prior to the
hearing, was inconsistent with the summary nature of the proceedings. I do
not see any such inconsistency.
A trial, although summary, must nevertheless
be a fair trial. By reason of amendments to the relevant legislation which
came into
force on 1st July 1992, many cases which seriously affect liberty
and reputation and which were formerly tried in the Supreme Court
or District
Court, are now tried summarily. Moreover the Rules of the Magistrates Court
are now designed to encourage pre-trial
procedures which facilitate the fair
and efficient disposal of summary proceedings. The requirement in a summons
to produce evidentiary
material, for the production of the material before the
hearing, enables issues as to whether the summons should be set aside and
whether the defence should have access to all or any of the documents
produced, to be disposed of before trial. The summons to produce
evidentiary
material is the means by which a party procures the material to be brought to
the Court. Access by the defence to the
material is quite another issue. It
is not directly in question in the present case as we are engaged upon
judicial review of a
decision to set aside the summons. Nevertheless as it has
a bearing upon the requirement that material be produced before trial,
I shall
make some observations about it.
16. Disclosure by those conducting a prosecution of material in the
possession or power
of the prosecution which would tend to assist the defence
case, is an important ingredient of a fair trial, Clarkson v DPP (1990)
VR 745
at p.755, and is an aspect of the prosecution's duty to ensure that the "Crown
case is presented with fairness to the accused";
Richardson v R [1974] HCA 19; (1974) 131 CLR
116 at p.119, R v Apostilides [1984] HCA 38; (1984) 154 CLR 563. Moreover the Court has
power to order the production to the defence of material in the prosecution's
possession
or power if the interests of justice so require; R v Clark 22 Cr
App R 58, Mahadeo v R (1936) 2 All ER 813, R v Hall 43 Cr App Rep
29, R v
Xinaris 43 Cr App R 30(N), R v Charlton (1972) VR 758. It will often be
necessary, or at least desirable, in the interests
of a fair trial that the
defence have access to the statements of witnesses and other evidentiary
material in the possession of the
prosecution in advance of trial in order to
prepare for cross-examination of prosecution witnesses and to prepare the
defence generally.
17. When documents or other evidentiary material are produced to the Court in
response to a summons, it is necessary for the Court
to decide whether the
defence is to be given access. The words of Hunt J in R v Saleam supra at
p.409 provide guidance as to how
the decision should be made:
"Before granting access when such an objection has been
taken, the judge should usually inspect
the documents (or
those which the Crown may suggest are sufficiently
representative) for himself, as it is unfortunately
not
unknown for the objection taken to be misconceived: see also
the remarks of Brennan J in Alister's case at 455, 456.
If
no public interest immunity or other privilege is claimed
(and upheld), and if a legitimate forensic purpose for their
production has been demonstrated, the judge should not
withhold access to the documents simply on the basis that in
his
view that purpose would not be satisfied in that
particular case because he can see nothing in the documents
which will in
fact assist the accused in his defence.
Provided that a legitimate forensic purpose has been
demonstrated, it should be for
the accused (or, in
appropriate cases, for his legal advisers only) to satisfy
himself on that score after his own inspection
of the
documents."
18. Inspection of statements of witnesses for the prosecution should be
allowed virtually as a matter of
course; Maddison v Goldrick supra. Moreover
the defence is prima facie entitled to inspect any document which may give it
the opportunity
to pursue a proper and fruitful course in cross- examination;
Maddison v Goldrick supra per Samuels JA at pp.667-68; R v Saleam supra
at
p.410. Where the material is such that access to it is not so obviously
necessary for a fair trial and especially where there
are countervailing
considerations, a judgment must be made by the Court. In making that
judgment, the Court should be guided, in
my opinion, by the words of Samuels
JA in Maddison v Goldrick supra at p.668:
"But, over recent years, the endeavours of law
reformers, in
most cases supported by judges, have been directed to
disposing of the last vestiges of trial by ambush, and
to
enabling each side to start the contest with the greatest
possible knowledge of what is going to be alleged against
him."
19. There is no legal impediment to the Magistrates Court giving the defence
access, prior to trial, to material produced
in response to a summons, if the
interests of justice indicate that course. If the decision is to refuse
access before trial, it
will be for the magistrate at trial to decide whether
access should then be given.
20. For the reasons which I have given, I consider
that there has been an
error of law. This Court is reluctant to intervene in criminal proceedings in
the Magistrates Court by way
of judicial review; Goldsmith v Newman (1992) 59
SASR 404 esp at pp.411-412. The error in the present case, however, if not
corrected,
would have general consequences for the administration of justice
in summary proceedings. I think that the intervention of the Court
is
warranted. The decision of the magistrate setting aside the summons should be
quashed. The application to strike out the summons
should be remitted to the
Magistrates Court to be disposed of according to law.
JUDGE2
BOLLEN J I agree with the reasons of the
Chief Justice and with the order
which he proposes.
JUDGE3
MULLIGHAN J I agree with the orders proposed by the Chief Justice and
with
the reasons he has given.
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