Director of Public Prosecutions v Yerbury

Judgment

1. The Director of Public Prosecutions seeks leave to appeal from a decision of a magistrate to exclude evidence of an electronically recorded interview. The interview was tendered in the summary prosecution of the first defendant. I will refer to her simply as "the defendant" as the only other party, the Local Court, has filed a submitting appearance. The interview was excluded pursuant to s 138 of the Evidence Act 1995 (NSW) on the basis that it had been obtained in contravention of an Australian law. In the alternative to the application for leave to appeal the Director seeks judicial review of the magistrate's decision.
2. The application for leave to appeal is governed by s 57(1)(c) of the Crimes (Appeal and Review) Act 2001 (NSW), as follows: 57 Appeals requiring leave (1) The prosecutor may appeal to the Supreme Court against - […] (c) an interlocutory order that has been made by the Local Court in relation to a person in summary proceedings, but only on a ground that involves a question of law alone, and only by leave of the Supreme Court.
3. The Director has formulated the "question of law alone" for the purposes of this section as follows: [Whether the magistrate erred in law in] failing to apply the correct the onus of proof in determining whether there was an impropriety or contravention of Australian law for the purposes of s 138(1) of the Evidence Act 1995.
4. This qualifies as a "question of law alone" because it can be stated without reference to the factual substrate. Nevertheless it will be necessary to refer to the setting of the proceedings in order to determine whether the ruling has the character of "an interlocutory order" and, if so, to assess whether leave to appeal ought to be granted.
5. The application for judicial review is brought pursuant to s 69 of the Supreme Court Act 1970 (NSW) on the following grounds: 1 The magistrate failed to apply the correct onus of proof in determining whether there was an impropriety or contravention of an Australian law for the purpose of s 138(1) of the Evidence Act 1995. 2 The magistrate's decision not to allow the [record of interview] to be adduced as evidence in the proceedings against the first defendant was unreasonable.
6. These grounds of review were further refined in the Director's submissions, to a contention that the magistrate made a jurisdictional error in proceeding to weigh considerations for and against reception of the disputed evidence. The Director argued that having applied the wrong onus of proof in deciding that the interview had been conducted unlawfully, her Honour proceeded to evaluate competing considerations and to exercise her discretionary judgment to exclude the interview in circumstances where she had no jurisdiction to do so because the threshold conclusion that s 138(1) was engaged had been reached through error of law.

The proceedings in the Local Court

1. The proceedings in which the impugned ruling on evidence was made is a summary prosecution of the defendant on four charges arising out of the removal of her black Mazda CX5 motor vehicle from her possession on two occasions in 2017 and 2018. On the afternoon of 19 May 2017 the vehicle was taken from the driveway of the defendant's residence at Engadine. At 6:12pm that day the defendant reported the vehicle stolen in a phone call to the police assistance line. She also notified her insurer of the alleged theft. On 22 May 2017 the vehicle was recovered by police. It had been located, parked, at a rugby field at Sylvania Waters. The vehicle was returned to the defendant at Miranda Police Station on 22 May 2017. The defendant advised the insurer the same day that no claim would be lodged.
2. It is alleged by the Director, who has assumed carriage of the charges in the Local Court, that the vehicle was removed from the defendant's possession with her knowledge and approval, in concert with her daughter, Reagan Yerbury, and one Gavin Dunn. Mr Dunn is the husband of a friend of the defendant and he had at some time been Reagan Yerbury's athletics coach. The defendant has been charged as follows in relation to the removal of the vehicle on 19 May 2017: [Seq 6] That between 19/04/2017 and 22/05/2017 at Sydney [she] did, by deception, that is, by falsely reporting vehicle CTJ93P (NSW) stolen to the police assistance line, attempt to dishonestly cause a financial disadvantage, to wit, the settlement of a comprehensive insurance claim in respect of the vehicle [s 192E(1)(b) of the Crimes Act 1900 (NSW)]. [Seq 3] That between 19/04/2017 and 13/11/18 at Sydney [she] did fail without reasonable excuse to bring information to the attention of a member of the Police Force or other appropriate authority, knowing or believing that an attempt to dishonestly cause a financial disadvantage had been committed in respect of the vehicle CTJ93P (NSW), and that [she] had information which might be of material assistance in securing the apprehension, prosecution and/or conviction of the offenders of this offence [s 316(1) of the Crimes Act 1900 (NSW)].
3. On 25 February 2018 between 8:00pm and 9:00pm the defendant's vehicle was again removed from near to her residence, this time by one James Clark. The respondent phoned the police assistance line at 8:58am on 26 February 2018 and reported it stolen. She made a claim on Eric Insurance Ltd by phone the same day. Eric Insurance Ltd commenced to investigate the loss. On 10 March 2018 James Clark and three other males were arrested in possession of the vehicle. Police notified the defendant immediately and she advised the insurer's investigator that the vehicle had been recovered. Notwithstanding recovery of the vehicle it appears that it was treated by the insurer as a write-off. On 16 April 2018 the defendant was informed that her claim had been approved and that settlement would be arranged with the financier of the vehicle. She subsequently received payment of over $30,000.

The voir dire regarding the defendant's record of interview

1. Early on the second day of the hearing in the Local Court, during the evidence in chief of DS Redenbach, the prosecutor tendered the electronically recorded interview of the defendant. Her counsel objected. When the learned magistrate enquired what was the basis of the objection counsel required that the witness remain outside the courtroom while that was explained. In the absence of the witness counsel said, first, that he contended a number of statements made to the defendant by the interviewing officers amounted to "threats, promises and inducements". This ground of objection was ultimately rejected by her Honour and it will not be necessary to refer to it again in these reasons. Counsel's second basis of objection was stated, uninformatively, as follows: [T]he lawfulness of the arrest of my client at the relevant time and how that affects the admissibility of the interview.
2. It is clear from the transcript that the prosecutor had no prior notice that an objection would be taken to the whole of the interview on the grounds that it was improperly or unlawfully obtained. Defence counsel's cryptic statement shed no light upon what would be submitted about the "lawfulness of the arrest." He sought leave to question the arresting officers on the voir dire. Her Honour acceded to that application and questioning commenced with cross examination of DS Redenbach, followed by a few questions from the prosecutor. DSC Scipione was similarly questioned first by the defendant's counsel and then, briefly, by the prosecutor. The defendant also gave evidence on the voir dire but not on any subject relevant to the present proceedings.
3. Neither officer had been in court when the defendant's counsel stated the ground of his objection, in the brief terms quoted above. Therefore, when questioned, neither of them knew that the lawfulness of the arrest was under challenge. The prosecutor knew that much but she had not been told upon what basis it would be said that the arrest was unlawful.
4. When the evidence on the voir dire concluded late in the afternoon on Thursday, 5 March 2020 the learned magistrate asked counsel how long argument on the objection to the interview would take. The following exchange took place: Prosecutor: At the moment I'm still not entirely sure what the objection is, so I certainly cannot indicate -- Her Honour: You will find out when Mr Hood [addresses].

The magistrate's ruling is not amenable to a grant of leave to appeal

1. Section 5F of the Criminal Appeal Act 1911 (NSW) provides for an appeal against "an interlocutory judgment or order given or made" in proceedings for the prosecution of offenders on indictment. Judicial interpretation of that provision is relevant to the way in which s 57(1)(c) of the Crimes (Appeal and Review) Act is to be applied. There are close similarities in the wording of the two sections. It is well-established that a ruling on the admissibility of a discrete item of evidence is not, for the purposes of s 5F, "an interlocutory judgment order": R v Steffan (1993) 30 NSWLR 633. In that case the Court of Criminal Appeal said at 636: It is not immediately self-evident as a matter of ordinary usage how a ruling on the admissibility of evidence could be entered in the records of the court as a judgment, or how it commands that anything be done (or not done) in the sense of an order of the court. It is true that such a ruling may be accompanied (as it was here) by elaborate reasons which have been expressed in a document called a judgment, but that is an altogether different usage of the word "judgment" and denotes the reasons which have been expressed rather than the formal act of the court.
2. After an extensive review of the authorities their Honours said at 639: We can see no distinction between a ruling on evidence made in advance of the trial and one made in the course of the trial. It still cannot be entered in the records of the court as a judgment; nor does it command that anything be done (or not done) in the sense of an order of the court. It remains as no more than a ruling, one which can be tested on appeal to this Court after a conviction. […] But rulings on evidence may always be altered - although the necessary consequence of such an alteration may sometimes be the discharge of the jury. They may be altered because the circumstances in which the ruling was first made have altered, or simply because the judge has had a change of mind.
3. By way of qualification to the above position it has been held that if a ruling on evidence given against the Crown has the effect of substantially preventing the prosecution of a charge, that ruling will assume the character of a "judgment or order" and will be amenable to appeal under s 5F of the Criminal Appeal Act.
4. In R v Bozatsis and Spanakakis (1997) 97 A Crim R 296 the trial judge concluded that the involvement of the accused in manufacturing methyl-amphetamine had been induced by undercover police officers acting illegally. His Honour held that in those circumstances the conduct of the police themselves constituted "the principal offence" or at least "an essential ingredient of the charged offence". On that ground he excluded under s 138 of the Evidence Act the entirety of the evidence that was proposed to be tendered in the Crown case. The Court of Criminal appeal held that this exclusion amounted to a "judgment or order" from which the Director could appeal under s 5F. Gleason CJ (with whom Meagher JA and Bruce J agreed) said at 304: [The trial judge said] that he was making an order excluding "all prosecution evidence" against the respondents. What is important is not his Honour's use of the word "order", but the character and effect of the decision he was making. He was not merely deciding that some particular piece of evidence was admissible or inadmissible. He was making a discretionary decision not to receive any evidence tending to prove the guilt of the respondents of the offences charged. He was, in substance, refusing to permit the Crown to seek to make a case against the appellants. Such a decision is properly characterised as a judgment or order.

Jurisdictional error

1. Pursuant to s 69 of the Supreme Court Act, undoubtedly the Court may make an order in the nature of a writ of certiorari where an inferior court or tribunal has made a jurisdictional error. The extension of the power to make such an order to cases where error of law appears on the face of the record is limited to situations where "the ultimate determination of a court or tribunal in any proceedings" has been made on the basis of the error: s 69(3). The learned magistrate's decision to reject the prosecution's tender of the recorded interview is not "the ultimate determination" of the Local Court in the relevant proceedings. Although there is an error of law on the face of the record, s 69(3) cannot be invoked. Therefore the Court can only grant relief if the error is properly to be characterised as jurisdictional: Russell v Scott at [83].
2. In Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 the High Court drew a distinction between the range of errors committed by inferior courts that are to be regarded as jurisdictional and the range of errors in the decisions of tribunals other than courts that are to be so regarded. At 176-177 their Honours held as follows: In considering what constitutes "jurisdictional error", it is necessary to distinguish between, on the one hand, the inferior courts which are amenable to certiorari and, on the other, those other tribunals exercising governmental powers which are also amenable to the writ. Putting to one side some anomalous exceptions, the inferior courts of this country are constituted by persons with either formal legal qualifications or practical legal training. They exercise jurisdiction as part of a hierarchical legal system entrusted with the administration of justice under the Commonwealth and State constitutions. In contrast, the tribunals other than courts which are amenable to certiorari are commonly constituted, wholly or partly, by persons without formal legal qualifications or legal training. While normally subject to administrative review procedures and prima facie bound to observe the requirements of procedural fairness, they are not part of the ordinary hierarchical judicial structure. […] An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Such jurisdictional error can infect either a positive act or a refusal or failure to act. Since certiorari goes only to quash a decision or order, an inferior court will fall into jurisdictional error for the purposes of the writ where it makes an order or decision (including an order or decision to the effect that it lacks, or refuses to exercise, jurisdiction) which is based upon a mistaken assumption or denial of jurisdiction or a misconception or disregard of the nature or limits of jurisdiction. Jurisdictional error is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers. […] Less obviously, an inferior court can, while acting wholly within the general area of its jurisdiction, fall into jurisdictional error by doing something which it lacks authority to do. If, for example, it is an essential condition of the existence of jurisdiction with respect to a particular matter that a certain event or requirement has in fact occurred or been satisfied, as distinct from the inferior court's own conclusion that it has, there will be jurisdictional error if the court or tribunal purports to act in circumstances where that event has not in fact occurred or that requirement has not in fact been satisfied even though the matter is the kind of matter which the court has jurisdiction to entertain. […] Again, an inferior court will exceed its authority and fall into jurisdictional error if it misconstrues that statute or other instrument and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case. In the last-mentioned category of case, the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern [citations omitted].

Orders

1. The orders of the Court will be: 1. The ruling made by Magistrate J Huber in the Local Court at Downing Centre, Sydney on 6 March 2020, that the Electronically Recorded Interview of the defendant conducted on 13 November 2018 not be admitted into evidence in the prosecution of the first defendant under Court Attendance Notice H69844258 (Sequences 1, 3, 6 and 7), is set aside. 2. The proceedings against the first defendant on the said Court Attendance Notice are remitted to the Local Court to be dealt with according to law.
2. Upon the handing out of this decision the parties will be heard as to costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 July 2020