Commissioner of Police v Chidgey & Anor

CASES CITED : AMD Far East and Ors v Doan and Anor [2004] NSWSC 78 Silk Bros Pty Ltd v State Electricity Commission of Victoria (1943) 67 CLR 1

Commissioner of Police PARTIES : Dylan Chidgey Director of Public Prosecutions

COUNSEL : Mr S. Free (Pl) Mr T. Robinson / Ms L. Goodchild (1st Def)

SOLICITORS : Crown Solicitors (Pl) Intercept Law (1st Def)

LOWER COURT MEDIUM NEUTRAL CITATION : Director of Public Prosecutions v Dylan Graemme Chidgey

• 8 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

14058/06 Commissioner of Police v Dylan Chidgey & Anor

JUDGMENT 1 HIS HONOUR: An authority to conduct a controlled operation was granted pursuant to s8 of the Law Enforcement (Controlled Operations) Act 1997 (NSW). Subsequently, the first defendant was charged in respect of a number of drug offences. He caused a subpoena for production to be issued to the Commissioner of Police. 2 The subpoena required the production of, inter alia, the following:- "3. A copy of the relevant documents and things required to be completed by the Police in accordance with the Controlled Operations Act and Regulations, including but not limited to the applications made for the approval of the Controlled Operation CO 05/434." 3 An application was then made to the Local Court by the plaintiff. The orders sought included the following:- "2. Paragraph 3 of the schedule to the subpoena issued to the Commissioner of Police at the request of Dylan Chidgey on or about 24 May 2006 be set aside on the ground that it lacks a legitimate forensic purpose." 4 On 21 July 2006, the application was heard (Cocks LCM). The Magistrate issued an ex tempore judgment as follows:- "HH: Yes, thank you. To my mind there is a mandatory requirement under s5(2A) and in those subsections to that, (a), (b), (c) and (d) that certain material has to be supplied to the chief executive officer in order for him to be satisfied as to the requisite extent. That being the case, to my mind it is appropriate that the defence be allowed access to the documents to ascertain well, once I give access to them they can use them as they see fit but the reason I would give access to them is so that they can check that there has been compliance with form in order for the chief executive officer to be so satisfied. To my mind they are matters that fall outside what is referred to as not invalidated by any procedural defect contained in s13A, they are of the nature that is more than just procedural defect but MANDATORILY (AS SAID) REQUIRED BY THE ACT FOR THEM TO BE PRODUCED AND AS SUCH TO MY MIND I BELIEVE THAT THERE IS A LEGITIMATE FORENSIC PURPOSE FOR THE SUPPLY OF THE MATERIAL TO THE DEFENCE and that being the case it is on the cards that there could be mounted, if there is non-compliance with a section such as that, there could be mounted at an appropriate time an argument under s138 of the Criminal Procedure Act."

The plaintiff has filed a Summons in this Court. It now proceeds on an Amended Summons filed on 30 March 2007. The purport of the proceedings is to challenge the decision of the Magistrate by way of appeal. 5 The Amended Summons contains, inter alia, the following:- "The appeal raises the question of whether the forensic purpose identified by Magistrate Cocks as justifying the impugned paragraph of the subpoena is legitimate in light of the provisions of the Law Enforcement (Controlled Operations) Act 1997 and the principles governing collateral review of statutory warrants and, if so, whether it is 'on the cards' that the impugned paragraph of the subpoena will produce documents that will materially assist the first defendant in the respect identified by his Honour." 6 As the proceedings are brought in respect of an interlocutory decision, any appellate entitlement can only be maintained if a grant of leave is obtained. Leaving aside what must be shown to obtain a grant of leave, the plaintiff must demonstrate error in point of law that justifies the disturbing of the decision. 7 The authorities establish that where a subpoena is challenged on the ground that it does not have a legitimate forensic purpose, the onus falls on the party that has issued the subpoena to identify the legitimate forensic purpose for which access to the documents is sought. If there is a failure to establish such legitimate forensic purpose, then the subpoena is an abuse of process and should be set aside. 8 There are two elements to the requirement that a subpoena must be properly issued for legitimate forensic purpose. There must be a relevant connection between the material sought and the case that the party seeks to make out based on that material (relevant in the sense that they will assist the case of the party seeking the documents). Also, there must be grounds for believing that the material sought will in fact assist (is it "on the cards" that the documents would materially assist the accused in his defence). 9 The appeal came on for hearing on 30 April 2007. The parties were represented by Counsel. The parties relied on written submissions, supplemented by oral argument. 10 At the commencement of the proceedings, the first defendant took a preliminary point. It was one that went to the jurisdiction of this Court to hear the appeal. There was a consensus that I should first determine that question. 11 The entitlement to bring an appeal from the Local Court to this Court is governed by Part 5 of the Crimes (Appeal and Review) Act 2001 (NSW) (the Act). Part 5 is comprised by three divisions. Division 1 is headed "Appeals by defendants". Division 2 is headed "Appeals by prosecutors". Division 3 is headed "Miscellaneous". 12 Section 3 of Part 1 of the Act deals with "definitions". It provides definitions for the words "defendant" and "prosecutor". 13 The word "defendant" is defined as follows:- "in relation to proceedings from which an appeal or application for leave to appeal is made, means the person against whom those proceedings have been taken." 14 It is common ground that the plaintiff is not a prosecutor. It is merely the recipient of a subpoena in the committal proceedings (in this context, the plaintiff has been referred to as a third party). 15 Division 3 of Part 5 of the Act has no present application. It contains ss 60 and 61, which respectively deal with "Limits on appeals" and "Rules of court". 16 The short point made on behalf of the first defendant is that the provisions of the Act do not contemplate an appeal from a person such as a third party. An appeal may only be brought to this Court either by a defendant or a prosecutor. 17 There is dispute between the parties as to the significance to be given to the headings. The first defendant looks to s35 of the Interpretation Act 1987 (NSW) (which provides that headings such as those with which the Court is presently concerned are to be taken to be part of the Act). 18 The plaintiff looks to s53(3)(a) of the Act (the provision) as conferring an entitlement to bring this purported appeal. Section 53 deals with "Appeals requiring leave". The provision relied on by the plaintiff is as follows:- "53 Appeals requiring leave (3) Any person against whom: (a) an order has been made by a Magistrate in relation to the person in any committal proceedings, or (b)…. may appeal to the Supreme Court against the order, but only on a ground that involves a question of law alone, and only by leave of the Supreme Court."

There is no issue between the parties that an order has been made by the Magistrate against the plaintiff (in dismissing the application brought by the plaintiff) and that the order is in relation to that person in committal proceedings. 19 The plaintiff contends that "Any person" as used in subs 3 is not restricted to "defendants". The argument is that the width of these words is not confined by the heading to Division 1 ("Appeals by defendants"). 20 I shall briefly mention certain of what was said in support of this argument. It was said that the provision clearly had such a meaning. The plaintiff relied on the decision of Shaw J in AMD Far East and Ors v Doan and Anor [2004] NSWSC 78. It was also a case that concerned an appeal brought by a third party (from a Magistrate's decision setting aside a subpoena). Shaw J dealt with the appeal pursuant to the provision. The plaintiff also relied on what was said by Latham CJ in Silk Brothers Pty Ltd v State Electricity Commission of Victoria (1943) 67 CLR 1 (concerning headings). 21 I do not accept that the provision has the clear meaning contended for by the plaintiff. In my view, at best, it could be submitted that it was ambiguous. 22 The provision has to be seen having regard to the objects of the Act and context. In my view, the expressed objects and context support the approach taken by the first defendant. 23 The expressed objects are to restate the law with respect to appeals and other forums of review in relation to criminal proceedings in Local Courts. 24 The Act is structured in various Parts. Part 2 deals with Local Court review. Part 3 deals with appeals to the District Court. Part 4 deals with appeals to the Land and Environment Court. These Parts, together with Part 5, provide the entitlement to challenge a Local Court decision. They do not extend an avenue of challenge to a third party. 25 In my view, the structure of Part 5 gives importance to the headings. They determine to whom the provisions therein have application. In my view, the provision has application to defendants only.

26 I do not consider that the decision in AMD supports the plaintiff. In that case, no jurisdictional point was taken. Shaw J proceeded on the assumption that there was jurisdiction. 27 I do not consider that what was said in Silk Brothers assists the plaintiff. The Chief Justice said:- "The headings in a statute or in regulations can be taken into consideration in determining the meaning of a provision where that provision is ambiguous, and may sometimes be of service in determining the scope of a provision… "But where the enacting words are clear and unambiguous the title, or headings, must give way and full effect must be given to the enactment" (Bennett v. Minister for Public Works (N.S.W.) (2), per Isaacs J.)." 28 As already indicated, I do not accept that the provision has the clear meaning contended for by the plaintiff. Further, what was said in that case was presented in a context where the headings did not have the status of being part of the Act. 29 There are further matters which support the approach taken by the first defendant. Prior to the operation of the Act, appeals from the Local Court were governed by s104 of the Justices Act 1902 (NSW). Those provisions did not confer any challenge entitlement on a third party (they applied to defendants and informants). This Act was repealed on 7 July 2003 and replaced by the Act. The second reading speech records that the intention of the new bill was to consolidate the existing law. 30 Accordingly, in my view, this Court does not have jurisdiction to entertain this appeal from the plaintiff. In those circumstances, save for dealing with a question of costs, I am asked to proceed no further. The plaintiff wishes to consider whether the proceedings can be reconstituted and then pursued as an application for judicial review. 31 There is dispute as to costs. The first defendant seeks an order for costs on the basis that costs should follow the event. The plaintiff contends that each party should be ordered to pay their own costs. 32 The jurisdictional point was raised at a very late stage (shortly before the commencement of the hearing). However, it has always been the responsibility of the plaintiff to satisfy itself that there was jurisdiction to bring this appeal. The plaintiff brought the abortive purported appeal. 33 In the relevant circumstances of this case, it seems to me that the dictates of justice are best served if the plaintiff is ordered to pay the costs of the first defendant to date. **********

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