DIRECTOR OF PUBLIC PROSECUTIONS v WEBB

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40673/00 MASON P BROWNIE AJA STUDDERT J

Wednesday 12 September 2001 DIRECTOR OF PUBLIC PROSECUTIONS v Kerrie Lee WEBB The opponent pleaded not guilty to charges under the Firearms Act 1996. The police prosecutor served a brief of evidence on the opponent as required by Subdivision 6A of Division 2 of Part 4 of the Justices Act 1902. The brief consisted largely of statements of proposed witnesses based on interception of private conversations, including telephone conversations. While the interception had occurred pursuant to warrants granted under the Listening Devices Act 1984 (NSW) and the Telecommunications (Interception) Act 1979 (Cth), the evidence served did not include any warrants or evidentiary certificates relating to execution of warrants.

In the Local Court the opponent argued that the non-inclusion of the warrants resulted in non-compliance with s66B of the Justices Act 1902, and that without the warrants, the tapes and transcripts were inadmissible. The Magistrate accepted these submissions, excluded the substantive evidence and dismissed the charges, due to the ensuing gap in the Crown case.

The informant appealed to the Supreme Court and the Director of Public Prosecutions took over conduct of the appeal. O'Keefe J dismissed the appeal, holding that the warrants should have been in the brief of evidence because they were "documents regarding the evidence that the prosecution intends to adduce in order to prove the commission" of the offences charged. The Director now appeals to this Court.

Held, by Mason P, Brownie AJA and Studdert AJA concurring:

1. References to intention and proposal in the definition of "brief of evidence" point to the subjective intention of "the prosecution" as represented by the "prosecuting authority" who is responsible for the particular prosecution at the time the duty is engaged.
2. Mere possibility is not to be equated with an intention or proposal. DPP v Sounthorn [1999] NSWSC 786 (referred).

3. Where the admissibility of substantive evidence depends on proof of certain matters, the proofs are as much an essential part of the ideal prosecution brief as the substantive evidence. The "evidence that the prosecution intends to adduce in order to prove the commission of the offence" includes evidence both of facts in issue and evidence tendered as proof of the same.

4. The conditional intention of the prosecuting authority to not adduce the evidence of the warrants "unless the defence took the point" was sufficient to engage the duty of early disclosure. DPP v Sounthorn [1999] NSWSC 786 discussed and distinguished

1. Grant leave to appeal.
2. Appeal dismissed with costs.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40673/00 MASON P BROWNIE AJA STUDDERT J

Wednesday 12 September 2001 DIRECTOR OF PUBLIC PROSECUTIONS v Kerrie Lee WEBB JUDGMENT 1 MASON P: The opponent was charged with offences under the Firearms Act 1996. She pleaded not guilty. As required by Subdivision 6A of Division 2 of Part 4 of the Justices Act 1902, a brief of evidence was served by the police prosecutor not less than 14 days before the listed hearing date. A significant part of the brief consisted of statements of proposed witnesses based upon the interception of private conversations, including telephone conversations. The interception had occurred pursuant to warrants granted under the Listening Devices Act 1984 (NSW) and the Telecommunications (Interception) Act 1979 (Cth). 2 The brief of evidence did not include any warrants or evidentiary certificates relating to execution of warrants. But there were statements by intended witnesses about listening to conversations pursuant to "lawful telephone intercepts granted under the Telecommunications (Interception) Act 1979" and "lawful listening devices authorised under the Listening Devices Act 1984". 3 The scheme of Subdivision 6A is explained in Director of Public Prosecutions v West (2000) 48 NSWLR 647 at 654-7 (West). Unless there is an order to the contrary, s66B imposes a duty on the prosecuting authority that is triggered by a plea of not guilty to a prescribed summary offence. The prosecuting authority must serve on the defendant "a copy of the brief of evidence relating to the offence". "Brief of evidence" is defined in s66A to mean:

... documents regarding the evidence that the prosecution intends to adduce in order to prove the commission of the offence and includes: (a) written statements taken from the persons the prosecution intends to call to give evidence in proceedings for the offence, and (b) any document, or other thing, identified in such a written statement as a proposed exhibit. 4 The prosecuting authority is not required to include a copy of an identified proposed exhibit if it is impossible or impractical to copy it. In such circumstances the defendant must be given a reasonable opportunity to inspect the proposed exhibit (s66C). 5 The requirement to serve the brief is further mitigated by a discretion to order that all or part of the copy of the brief need not be served if the magistrate is satisfied that there are compelling reasons for not requiring service, or that the brief could not reasonably be served on the defendant (s66E). 6 If there is non compliance, the magistrate is required to refuse to admit the evidence, subject to a discretion to dispense with this requirement on such terms as appears just and reasonable (s66F). 7 In the Local Court the opponent argued that the non-inclusion of the warrants in the brief resulted in non-compliance with s66B, and that the tapes and transcripts were inadmissible without the warrants. No application for the exercise of any dispensing power was pressed. Magistrate Barkell accepted the defence submissions, excluded the substantive evidence, and dismissed the charges because of what had become a crucial gap in the Crown case. Her Worship held that "the existence of lawful authority is evidence which the prosecution intends or should intend to adduce in order to prove the commission of the offence and it is required to be served under s66B". She distinguished the situation involving a search warrant issued under the Search Warrants Act 1985. 8 The informant appealed to the Supreme Court and the Director of Public Prosecutions took over the conduct of the appeal. The right of appeal is available "on a ground that involves a question of law alone" (Justices Act, s104(2)(b)). The Director's appeal was itself dismissed by O'Keefe J (see DPP v Webb [2000] NSWSC 859). The Director seeks leave to appeal against that order. 9 O'Keefe J held that the warrants should have been in the brief of evidence, because they were "documents regarding the evidence that the prosecution intends to adduce in order to prove the commission" of the offences charged. He referred to case law discussing the word "regarding" and the analogous phrases "with respect to" and "in respect of". The cases included C v S [1979] 2 NSWLR 598, Powers v Maher (1959) 103 CLR 478 at 484-5, Empire Shipping Co Inc v Owners of the Ship "Shin Kobe Maru" (1991) 104 ALR 489 and Oceanic Life Ltd v Chief Commissioner of Stamp Duties (1999) 168 ALR 211. After summarising the effect of the cases His Honour said:

30. In the present case the connective word "regarding" occurs in a statute whose purpose is to reform the law of criminal procedure, one of the objects or purposes of which is to ensure that a defendant in proceedings to which Subdiv 6A of Div 4 of Pt 2 of the Act applies is apprised of the prosecution's evidence from shortly after a plea of not guilty has been entered and in such a way as to enable the defendant to identify the real issues that are involved in the case and assess the strength and, by parity of reasoning, the weaknesses (if any) of the Crown case. In these circumstances a restrictive approach should not be adopted to the meaning and ambit of the statute. This means, in my opinion, that in its statutory context the connective word "regarding" should not only be construed as having a wide ambit but in addition the plane on which the nexal relationship is to be established should not be fixed at a high level. The connection must be real. It must be relevant. It must not be remote or merely speculative. 10 The learned judge held that it was necessary for the prosecution to establish that the recordings of the conversations had been lawfully effected. The warrants were therefore essential to the admissibility of the material obtained in the exercise of the powers conferred by those warrants. It followed that there was a real connection between those warrants and the evidence to be tendered to establish the commission of the offences charged. This provided the nexus required by the definition of "brief of evidence". His Honour distinguished DPP v Sounthorn [1999] NSWSC 786 in which Grove J had held that it was not necessary to include copies of search warrants issued under the Search Warrants Act 1985 in the brief of evidence served in that case. 11 O'Keefe J held that the fact that a document might not have to be tendered was not sufficient to take it outside the class of documents required to be served. "Proposed exhibits" were not the same as necessary or essential exhibits. In any event the warrants were essential to admissibility having regard to ss5 and 13(1) of the Listening Devices Act and ss5B, 7, 39, 74 and 77(1) of the Telecommunications (Interception) Act (judgment at ss34-35). 12 In the written outline, the claimant submitted that O'Keefe J failed to have due regard to the phrase "the evidence that the prosecution intends to adduce in order to prove the commission of the offence" when considering the proper meaning of the term "brief of evidence". The claimant further submitted that the judge's approach went beyond the definition and, if correct, would mean that the definition embraced internal police or prosecution documents which discussed the evidence to be adduced. 13 The latter proposition is a non sequitur, but the former submission deserves closer attention. It was developed and refined in the most helpful oral submissions of counsel for the claimant, Mr Lakatos. 14 Counsel recognised that the right of appeal depended on establishing a question of law and that it was confined to such a question. This acknowledgement, taken with other concessions properly made in oral address, virtually removed the ground from under the claimant's feet. I shall endeavour to explain why, in the course of some general comments about the not insignificant issues thrown up by this summons. 15 I accept the claimant's submission that references to intention and proposal in the definition of "brief of evidence" point to the subjective intention of "the prosecution", as represented by the "prosecuting authority" who is responsible for the conduct of the particular prosecution at the time the duty is engaged. "Prosecuting authority" is defined in s66A of the Justices Act to mean:

(a) the Director of Public Prosecutions, or (b) a police officer, or (c) a person prescribed by the regulations for the purposes of this definition, who is responsible for the conduct of a prosecution. 16 I shall later explain why it will seldom be necessary to ascertain the precise identity of the person or persons concerned. 17 In West I referred (at 659) to the prospective nature of the prosecuting authority's duty, observing that this was emphasised by the references to statements from persons "the prosecution intends to call" and documents or things identified in such statements as "a proposed exhibit". This prospectivity may both heighten or reduce the impact of the duty in particular cases. A cautious prosecutor may have to include documents which at trial turn out to be unnecessary. Conversely, statements and exhibits which are genuinely late additions to the Crown brief may escape the obligation of early disclosure, albeit that their late arrival may have other consequences (eg adjournment). 18 The trigger to the disclosure obligation picked up through the combined operation of s66B(1) and the definition of "brief of evidence" is the prosecuting authority's intention to adduce specific evidence, including the intention to call particular witnesses and identification in the statements of such witnesses of proposed exhibits. Mere possibility is not to be equated with an intention or proposal. I agree with Grove J in Sounthorn, where he said (at [15]): There is in my view no ambiguity in the legislated definition of the brief of evidence, and the requirements of purposive construction of statutory language do not mean that in the present context the prosecution must supply a copy of every document which may possibly become relevant in the course of hearing.

Of course, there will be difficulties in drawing lines in specific cases, but that happens every day in the law. 19 However, the mere fact that the prosecuting authority's intention/proposal is conditional will not suffice to relieve it of the obligation of early disclosure. If that were the law, the scheme would miss several of its intended targets (cf West at 654-5). I agree with O'Keefe J's remarks quoted above that a restrictive approach should not be adopted to the meaning or ambit of the statute. A fortiori, given the liberal discretions to waive non-compliance on appropriate terms (see West at 656-7). It is commonplace that the moving party in civil or criminal proceedings will discover that it becomes unnecessary to call every intended witness or to tender every proposed exhibit. In criminal cases a late plea may remove the need for any matter to be proved formally. Other issues may go away in light of formal admissions, judicial rulings, or the simple ebb and flow of adversary litigation. A conditional intention may still be a formed intention, as with the statement "I intend to go to the cricket if it is fine" (see generally K Campbell, "Conditional Intention" (1982) 2 Legal Studies 77). 20 Where the very admissibility of substantive evidence depends on proof of certain matters, then the latter proofs are as much an essential part of the ideal prosecution brief as the former. The "evidence that the prosecution intends to adduce in order to prove the commission of the offence" thus includes evidence both of facts in issue and evidence tendered solely in proof of the same (cf Evidence Act 1995, s55(2)(b)). This evidence will thus include facts touching "preliminary questions" as defined in s189 of the Evidence Act. Since an offence can only be proved by admissible evidence (leaving aside judicial notice, formal admissions and the like, which are rare) it may be inferred that the prosecuting authority would intend to adduce only admissible evidence. To the extent that admissibility itself turns on proof by "documents regarding the evidence" then the sinews of such proof are themselves a necessary part of the prosecution brief. 21 Of course, the formal admission of a fact will mean that is no longer in issue. Likewise, the waiver of a necessary method of proving a fact in issue may relieve the proponent of the need to do so. If such circumstances occur before the time for serving the brief of evidence, a prosecuting authority may properly form the intention not to call evidence on such matters, with consequential lightening of the load imposed by s66B(1). 22 It will not, however, suffice that the prosecuting authority thinks or hopes that formal proof may be dispensed with. A defendant is entitled to put a prosecutor to strict proof and a prosecuting authority is not entitled to assume otherwise without a firm foundation. (The Criminal Procedure Amendment (Pre-Trial Disclosure) Act 2001 qualifies this proposition in certain respects as regards complex trials in the Supreme Court and District Court.) 23 The claimant submitted that in the present case it was not the intention of the prosecuting authority to adduce the evidence of the warrants "unless the defence took the point". There are several difficulties with this. First, it does not qualify as a question of law. Secondly, the submission is pure assertion in view of the absence of evidence on the topic. Thirdly, the submission fails to grapple with the likelihood, verging on certainty, that the particular prosecutor must have intended to tender the warrants and evidentiary certificates, if necessary to do so. Such necessity might arise if the defendant absented herself from the hearing (cf Hodder (1986) 33 A Crim R 295) or if she attended and exercised her right to put the Crown to a strict proof. Such conditional intention was sufficient to engage the duty of early disclosure. In my view, it is indistinguishable from the intention of the person who says : "I will go to the cricket tomorrow if it is fine, unless the test match is over before then". Indeed, the cricket-lover's intentionality strikes me as more tentative than that of the prosecutor who, unless totally uninformed, must have realised both the necessity to tender the warrants unless the need to do so was waived and that there was no likelihood that waiver would be addressed until the day of trial. 24 In my view, O'Keefe J was correct in holding that no error of law was established. 25 The relevant warrants and evidentiary certificates were essential preconditions to admissibility of the tapes and other evidence of the intercepted conversations for the following reasons:

(a) Under the Listening Devices Act , evidence of a private conversation may not be given by a person in criminal proceedings when knowledge of the conversation came to the person as a result of "the use of a listening device in contravention of section 5" (s13(1)). Section 5(1) prohibits the use of a listening device to record or listen to a private conversation to which the listener is not a party. There are various exceptions set out in s5(2), but it is significant that they are exceptions. The only one of present relevance is where the listening device is used pursuant to a warrant granted under Part 4 of that Act.

(b) Under the Telecommunications (Interpretation) Act , "neither information, nor a record, obtained by the interception" of a communication passing over a telecommunications system is admissible in evidence in a proceeding, subject to various exceptions (s77(1)). The only relevant exception relates to prosecution evidence in "exempt proceedings", being evidence of a communication intercepted under a warrant duly applied for (ss5B, 7(2)(b), 39). The way that such lawful interception is established, if necessary, is by tender of certified copies of warrants (s61A) and evidentiary certificates (s61). 26 The claimant does not contest these propositions as to the necessity for proof of authority by warrants under the two statutes. It was also accepted that the reference in several statements in the brief of evidence as to the witness having intercepted private conversations pursuant to "lawful" interception (see par 2 above) was an implicit assertion that warrants had been obtained and could, if required, be produced. 27 The claimant relies on Sounthorn. However, that decision is clearly distinguishable. In Sounthorn the defendant was charged with having cash in his possession reasonably suspected of being stolen or unlawfully obtained. The informant gave evidence of forcible entry into premises and continued to the point where she testified that she had shown a search warrant to the defendant. The defendant objected to further evidence on the basis that copy of the search warrant had not been served with the brief of evidence. The magistrate ruled that the prosecutor was precluded from adducing evidence about what the informant observed or about the items seized in the search. The prosecutor offered no further evidence and the charge was dismissed. 28 On appeal, Grove J quashed the dismissal and declared that the search warrant was not required to be included in the brief of evidence. His Honour said that the essential question was whether the search warrant which authorised entry, search and seizure was a document encompassed within the definition of "brief of evidence" in s 66A . He held that the magistrate had erred in basing his conclusion upon an analysis that the prosecutor (presumably as witness) relied upon the issuing of the search warrant to justify what would otherwise be an unlawful entry. He held that the question which ought to have been addressed was whether the search warrant was a document "regarding the evidence which the prosecution intends to adduce in order to prove the commission of the offence". He continued: 9. The search warrant itself was not part of the proof of the offence by the prosecution. Its existence (coupled with validity) was capable of defeating objection on behalf of the defendant to the admissibility of evidence concerning entry, search and seizure, but the evidence upon which the prosecution intended to rely in order to prove the commission of the offence included the facts of the entry, search and seizure by police but not as a matter of evidence the antecedent legal authority for doing so. It is recognized that the specified inclusive examples in subss(1)(a) and (b) of s66A are not exhaustive but it can be mentioned that it was plain that the prosecution did not, as part of its case, propose that the search warrant be tendered as an exhibit. 29 Grove J pointed out that the Search Warrants Act 1985 (s 21) and the Search Warrants Regulation 1999 (cl 8) provided in effect for an original search warrant to be returned to the issuing justice after execution together with a report as to execution. (In Sounthorn there was actual evidence that the original warrant had been sent back to the relevant Local Court.) In these circumstances, His Honour inferred that an original search warrant would be likely to have passed from the possession of the prosecutor well before a defended hearing of summary proceedings would be scheduled and therefore well before the time when the brief of evidence was required to be served pursuant to s66B (2) of the Justices Act . 30 Grove J also held that the evidence that the informant intended to give in proof of the commission of the offence was admissible as part of the prosecution case without the need to tender the warrant itself. 31 Southern is distinguishable from the present case because these matters provided material indicating that the prosecutor did not in fact intend to tender the search warrant and did not need to tender it in proof of the offence. 32

Late in his judgment Grove J added (at [15]-[16]): If the search warrant was to become required, such a requirement would have emerged from an objection seeking to advance a case on behalf of the defendant rather than emerging as part of the prosecution case. In short, whilst it may be foreseen that if the case took a particular turn, evidence to overcome objection or evidence in rebuttal might come to be tendered, the requirement for inclusion in the brief does not extend to that contingent material. I add, in deference to express submission by the defendant, that I am of opinion that proof of lawful authority by tender of the warrant is not a prerequisite for the admission of evidence of observations by police upon forcible entry or of items seized by them. 33 I wish to reserve my position as to the correctness of these (obiter) remarks. I have already indicated my view that the obligation under the Justices Act is not avoided merely because the prosecuting authority intends to tender material "if the defence takes the point". I would also reserve my position as to whether Grove J was correct in suggesting that a prosecutor's intention to tender particular evidence in rebuttal or reply, would necessarily take that evidence out of the requirements of s66B (see also the reference to "as part of its case" in the passage from s9 of Southorn that I have quoted above). While an accused person may have an evidentiary onus in some matters (including questions as to whether evidence was improperly or illegally obtained: Coulstock (1998) 99 A Crim R 143) it does not necessarily follow that a prosecutor may not realise the likelihood of such an issue being raised and thereupon form the intention to tender evidence on the topic. 34 Thus far, I have used the expression "prosecuting authority". This term is used in the operative sections of Subdivision 6A. Its definition is set out above. 35 The person or persons responsible for the conduct of a prosecution may change from time to time. Indeed his, her or their identity may be uncertain at any point of time, including the time at which the various obligations engage. Little if anything turns on this, because the duties find their ultimate sanction in s66F which requires the magistrate to refuse to admit evidence sought to be adduced (ie at trial) if there has been prior non-compliance with the Subdivision. 36 In these circumstances, it is unlikely that an individual prosecuting officer will ever come to be identified as the person who (at the time when the brief was served) intended to adduce the evidence of a particular person or proposed to tender a particular exhibit. Accordingly, even though the Justices Act addresses an actual subjective intention, it is highly unlikely that there will be many forensic contests as to whether an identified individual actually formed such intent. The extent to which the effective content of the duty of disclosure in a particular case was enlarged or reduced because of exceptional caution or nonchalance can therefore await later resolution. 37 Normally, the issue will proceed on the basis of the situation as it presents itself at the trial, looking back and drawing reasoned inferences about what the intent of the unidentified "prosecuting authority" who had (or should have had) the carriage of the prosecution at the relevant time past. (This is what happened in the present case (see the passage in the magistrate's reasons quoted at par 7 above and per O'Keefe J at [36]).) Like the "reasonable man" beloved of tort law, the prosecuting authority will not be assumed to have had "the courage of Achilles, the wisdom of Ulysses or the strength of Hercules" (Winfield, Textbook of the Law of Tort 14th ed p51). Nor will he or she have "the prophetic vision of a clairvoyant" (Hawkins v Coulsdon and Purley UDC [1954] 1 QB 319 at 341 per Romer LJ. 38 I propose the following orders:

1. Grant leave to appeal. 2. Appeal dismissed with costs. 39 BROWNIE AJA: I agree with Mason P. 40 STUDDERT J: I agree with Mason P.

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