Director of Public Prosecutions v Yerbury

Supreme Court of NSW|2020-07-14|Before: Fagan J, Magistrate J

Judgment

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.
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.
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.
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.

The proceedings in the Local Court

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.
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)].
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 charges against the defendant in relation to this second removal of the vehicle are as follows: [Seq 1] That between 15/2/18 and 30/4/18 at Sydney [she] did, by deception, that is, by lodging a false insurance claim in respect of motor vehicle CTJ93P (NSW), dishonestly cause a financial disadvantage, to wit, the settlement of a comprehensive insurance claim to Eric Insurance Ltd [s 192E(1)(b) of the Crimes Act 1900 (NSW)]. [Seq 7] That between 15/2/18 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)].
The defendant was arrested at 7:12am on 13 November 2018. All four charges were laid, by the issue of Court Attendance Notices, at 4:38pm that day. The hearing of the charges commenced before Ms J Huber LCM on 2 March 2020 and continued until 6 March 2020. The proceedings were then adjourned part heard to 12 October 2020. Gavin Dunn, Glen Stone and Reagan Yerbury were also before the Local Court in the March hearing, on related charges. The prosecution of all four defendants will continue in October 2020.
The arrest of the defendant was effected by Detective Sergeant Redenbach and Detective Senior Constable Scipione. Both officers were at the time attached to the Professional Standards Command. DS Redenbach was the officer in charge of the investigation. The defendant was at all relevant times a serving police officer. After her arrest she was taken to Kogarah Police Station, arriving at 7:39am. Assessment and completion of paperwork by the custody manager was completed at 8:37am. DS Redenbach and DSC Scipione commenced an electronically recorded interview of the defendant at 9:53am. It was concluded at 12:40pm.

The voir dire regarding the defendant's record of interview

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.
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.
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.
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 prosecutor's position was understandable. Having read the whole of the transcript of the voir dire up to the commencement of oral submissions I find that no elucidation was given by the defendant's counsel as to what he would argue. After the above exchange with the prosecutor, her Honour invited defence counsel to address first. He did so for the remaining half hour of that day. He submitted that the arrest had been unlawful because the prosecution had failed to prove (a) that officers Redenbach and Scipione were satisfied that an arrest was reasonably necessary, for one or more of the reasons listed in s 99(1)(b) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), or (b) that at the time of the arrest they intended to charge the respondent.
As to (a), her Honour was satisfied from the evidence of the arresting officers that s 99(1)(b) had been complied with. There is therefore no need to burden these reasons with the detail of the defendant's argument in that respect. As to (b), counsel's oral submission invoked s 99(3) of the Law Enforcement (Powers and Responsibilities) Act, which is in the following terms: 99 Power of police officers to arrest without warrant (3) A police officer who arrests a person under this section must, as soon as is reasonably practicable, take the person before an authorised officer to be dealt with according to law.
The defendant's counsel cited New South Wales v Robinson [2019] HCA 46. Relevant extracts from the judgment of Bell, Gaegler, Gordon and Edelman JJ in that case are as follows (citations omitted): [109] […] To comply with the requirement in s 99(3) immediately upon arrest, a police officer must at the time of arrest have an intention to take the person, as soon as is reasonably practicable, before an authorised officer to be dealt with according to law to answer a charge for that offence. If there is no intention to comply with the requirement in s 99(3), the arrest is unlawful. And a requirement for the police officer to have an intention to bring a person before an authorised officer means, as a matter of substance, a requirement to have an intention to charge that person. [110] Thus, an arrest under s 99 can only be for the purpose, as soon as is reasonably practicable, of taking the arrested person before a magistrate (or other authorised officer) to be dealt with according to law to answer a charge for that offence. An arrest merely for the purpose of asking questions or making investigations in order to see whether it would be proper or prudent to charge the arrested person with the crime is an arrest for an improper purpose and is unlawful. [111] Section 99(1)-(3), in its terms, does not alter that single criterion for a lawful arrest that has been the law in New South Wales since at least 1933. […] The intention required at the time of arrest is an intention to charge unless it emerges after the arrest that the circumstances do not justify such a decision. As s 105 provides, discontinuing the arrest may mean that the person is dealt with in some other manner pursuant to s 105(2)(b). [112] This is reinforced by the terms of Pt 9, which concerns investigations and questioning. The Part applies to a person who is under lawful arrest by a police officer for an offence. It expressly provides that it does not confer any power to arrest, or detain, a person who has not been lawfully arrested. Put in different terms, absent a lawful arrest under s 99, Pt 9 has no operation. If there is a lawful arrest, a police officer may "detain" a person for the investigation period. Part 9 has operation only when there has been a lawful arrest and, then, subject to the protective procedures and provisions in Pt 9. Section 114(4) provides that the person must be released within the investigation period or brought before an authorised officer or court within that period, or, if it is not practicable to do so within that period, as soon as practicable after the end of that period. That protection is in addition to that provided for under s 99(3), which, subject to the investigation period, remains a duty of the police officer - that is, as soon as practicable, to take the person before an authorised officer to be dealt with according to law.
The closing oral submissions of the defendant's counsel were the first intimation that the defendant contended the arrest had been unlawful because the officers had not, at the time of taking her into custody, intended to lay charges. That proposition had not been stated at the outset when the magistrate had asked what was the basis of the defendant's objection to the interview. It had never been stated in the course of taking evidence on the voir dire. Counsel for the defendant did not put to either of the police officers that they had made the arrest without having an intention to lay charges. They were thus given no opportunity to respond to that proposition. The prosecutor did not ask either officer whether he had held an intention to lay charges. Nothing in the conduct of the voir dire or of the defence case generally would have given the prosecutor any indication that this was an issue.
On the morning of Friday, 6 March 2020 the prosecutor provided the learned magistrate with seven pages of clear and very thorough written submissions concerning the defendant's objection to the interview. Paragraphs 1 and 2 of those submissions were as follows: 1 An objection, pursuant to s 138 of the Evidence Act 1995, has been raised in respect of the ERISP of [the defendant]. 2 The onus is on the party seeking exclusion of the evidence to establish that it was improperly or illegally obtained. If that onus is met, it is for the party seeking admission of the evidence to satisfy the Court that that desirability of admitting such evidence outweighs the undesirability of admitting, given the way in which it was obtained: Parker v Comptroller-General of Customs (2009) 83 ALJR 494.
Paragraph 2 correctly stated the law. In Parker v Comptroller-General of Customs [2009] HCA 7 French CJ said (citations omitted): [28] The party seeking to exclude the evidence has the burden of showing that the conditions for its exclusion are satisfied, namely that it was obtained improperly or in contravention of an Australian law. The burden then falls upon the party seeking the admission of the evidence to persuade the court that it should be admitted. There is thus a two stage process. The party seeking admission of the evidence has the burden of proof of facts relevant to matters weighing in favour of admission. It also has the burden of persuading the court that the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in the way in which it was obtained.
That statement of the burden of proof under s 138 has been accepted and applied in many subsequent cases. There has not been cited to the Court any decision of the High Court in which it has been reconsidered. R v Kaewklom (No 1) [2012] NSWSC 1103 provides an illustration of French CJ's judgment in Parker v Comptroller-General of Customs being applied to a s 138 objection very similar to that which was before the learned magistrate; that is, an objection to a record of interview on the ground that the interviewee had been unlawfully arrested. See [122]-[126] of Johnson J's judgment in R v Kaewklom (No 1).
At par 6 on p 3 of her written submissions the prosecutor argued that "the evidence does not establish that police, in arresting [the defendant] had the improper and unlawful purpose of only arresting her to make investigations and conduct an interview". That submission was founded upon a correct appreciation of the burden of proving illegality of the arrest. The burden lay with the defendant. However, from the outset of the prosecutor's oral submissions on Friday, 6 March 2020 the learned magistrate reversed the onus. The following exchange with the prosecutor illustrates this: Her Honour: Where do you say the officers have given evidence that at the time of the arrest they had an intention to charge? Certainly they give evidence as to why they arrested [the defendant], that is the preservation of the material, but where you do you say I can find evidence that at that time, at the time of the arrest, they had an intention to charge her? […] Prosecutor: `Your Honour, the Crown submission is that that express evidence was not given by the officers in terms of forming that intention at the time. However, the Crown further submits that in order to make a ruling or find that they did not have that intention that it would have been required to have been put to them, questions along the lines of, "You did not have that intention", or to explore that topic on the voir dire which the Crown submits was not put to the witnesses. Her Honour: It wasn't, […] the Crown was aware that an objection had been taken in relation to the arrest and unless you can show me where otherwise the law states, but where the arrest has been challenged it is for the Crown, is it not, to show that that element had been satisfied? Certainly, no examination by the Crown of their own witness, who in fact was called by the defence, which, of course, means that you were cross-examining that witness and able to ask those questions.
If, as the magistrate mistakenly thought, the burden lay on the prosecution to prove that there had been no impropriety or contravention of law in conducting the recorded interview, then procedural fairness would have demanded that the defendant specify, at the outset of taking the objection or at the latest during questioning of the police, what was the point of challenge to the lawfulness of the arrest.
The prosecutor was quite right to say that if the alleged defect in the arrest was absence of intention to charge, then that should have been squarely put to the arresting officers when they were in the witness box. Her Honour's response that "the Crown was aware that an objection had been taken in relation to the arrest" overlooked the defendant's failure to particularise why the arrest was said to have been unlawful until the witnesses were long gone. Similarly, her Honour's observation that the prosecutor was "able to ask those questions" did not take into account that the prosecutor had no way of knowing that she needed to "ask those questions".
Because onus lay with the defendant to prove that the interview was obtained following an unlawful arrest, counsel's failure to identify the ground of objection with sufficient particularity to enable the prosecutor to meet it and his failure to give the witnesses an opportunity to respond did not result in procedural unfairness that would require a remedy. The only consequence was that no evidence was adduced from the arresting officers as to whether they had intended to lay charges. It is a matter of speculation what their evidence might have been. With no evidence, the defendant's burden at the first stage in the application of s 138 was not discharged.
The defendant's counsel submitted to the learned magistrate that: there is no onus at my end of the bar table to establish the matters […] as to intention or as to the matters under s 99.
Counsel cited no authority to displace or qualify French CJ's holding in Parker v Comptroller-General of Customs. The magistrate erred in accepting the above submission. Although the prosecutor had cited applicable authority her Honour did not refer to it or apply it in her reasons for upholding the objection. Her reasons included the following: [New South Wales v Robinson] states quite clearly that a proper construction of [s 99(3) of the Law Enforcement (Powers and Responsibilities) Act] is that there is a requirement for the police officer to have an intention at the time of arrest that he intended to charge that person, and that, of course, is something which it is for the Crown to prove, it is not for that defence to prove. Some considerable amount of time passes, I think it is two hours passes [after the defendant's arrest] before she is interviewed, and during that time more material is obtained. That is an important factor when having regard to how the Court is supposed to know what is in the mind of the police officers at the time when at no time is that question put to them in the voir dire, and at no time do they offer that information in the voir dire, that it was their intention to charge her. Clearly, firstly, I am not satisfied that the Crown has demonstrated that either officer, at the time of the arrest, had an intention to charge the defendant, and therefore, s 138 comes into play.
Each of those three paragraphs discloses the error for which the Director seeks leave to appeal. Having determined that the threshold in s 138(1)(a) had been crossed, because the prosecution had failed to prove that the arrest was lawful, the learned magistrate embarked upon the inquiry prescribed in s 138(1); that is, the inquiry as to whether: the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
In undertaking that evaluation her Honour addressed the consideration specified in 138(2)(d), "the gravity of the impropriety or contravention". Her Honour said: There is no issue that the ERISP has probative value and it is an important piece of evidence in the proceedings. With respect to subparagraphs (d) and (3) the paucity of evidence with respect to how it was or why it is that the Court does not have that evidence as to any intention is such that I am unable to be of the view whether or not it was deliberate or reckless. There is no evidence before me either way. Certainly, it is a grave impropriety, but whether or not the contravention was deliberate or reckless, on the evidence before me I am unable to say. […]
Her Honour then said that having regard to "the gravity of the contravention" she resolved the weighing of considerations adversely to the prosecution and rejected the interview. The learned magistrate's reasons with respect to this evaluative task highlight the procedural irregularity of the defendant's counsel having conducted the voir dire without specifying the ground upon which he would contend that the arrest was unlawful. It is correct that her Honour had "no evidence before [her] either way" as to whether the arrest had been made with deliberate lack of intention to lay charges, or recklessly as to the absence of such an intention. That was because the defendant's counsel had not asked the police officers any questions on the subject and because the prosecutor was not on notice of an issue that would reasonably have required that she should ask such questions.

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

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.
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.
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.
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.
In R v Lisoff [1999] NSWCCA 364 the Crown alleged that the accused was one of three assailants who inflicted grievous bodily harm upon a victim with intent. The only evidence connecting the accused with the crime was a DNA analysis of blood spots on clothing that was admittedly worn by him on the day of the attack. The analysis matched the blood samples to the accused's profile. The trial judge ruled the evidence inadmissible under s 137 of the Evidence Act on the basis that difficulty for the jury in comprehending the scientific evidence would cause prejudice to the accused. The Director determined that, should the DNA evidence remain excluded, "there are to be no further proceedings against the accused". Evidence of that determination was before the Court of Criminal Appeal, on affidavit.
The Court held as follows: [38] […] The substance of what [the trial judge] has done is to destroy, in every real and practical sense, any prospect of the Crown's presenting to the jury the substance of a case available to it and tending, if accepted, to the proof beyond reasonable doubt of the respondent's guilt as charged. [46] Had it been clear, in the present case, that the Crown case had been weakened, but not at all effectively destroyed, by [the trial judge's] relevant decision, we would have followed unhesitatingly the approach of Hunt CJ at CL in R v Steffan. [47] We are persuaded, however, that what [the trial judge] has done in the present particular case goes beyond, and well beyond, the giving of a mere ruling on evidence, the effect of [such a] ruling being to inconvenience, or even to weaken, the Crown case, but in an overall context that is sufficiently fluid to permit of a subsequent review , and if appropriate reversal, of the ruling. On the basis of those conclusions their Honours proceeded to review the trial judge's reasons for excluding the DNA evidence and reversed his decision.
In R v O'Neill [2001] NSWCCA 193 the accused was charged with using an offensive weapon to prevent lawful apprehension and in the alternative with maliciously wounding an arresting officer. The Crown alleged that the offending conduct had occurred within the accused's home after police had forced entry to arrest him. The trial judge found that the forced entry was unlawful and proposed to direct a verdict of acquittal on the first count. Other events, not relevant for present purposes, resulted in the jury being discharged. The Crown sought leave to appeal the ruling that the forced entry was unlawful.
In those circumstances, Mason P (with whom Sully and Dowd JJ agreed) said the following: [18] Returning to s 5F, there are circumstances where a ruling given by way of formal reasons which in substance reject the Crown case will be treated as "an interlocutory judgment or order" albeit that no formal or immediately dispositive order is made. The principles are discussed in R v Bozatsis and Spanakakis (1997) 97 A Crim R 296 and R v Lissof [1999] NSWCCA 364. Each case involved a ruling excluding evidence on a particular topic. However, the effect of each ruling was the rejection of a Crown case dependent on that evidence. The ruling in the present case is to similar effect. The respondent does not contend otherwise.
Like Adams J in Russell v Scott [2017] NSWSC 1720, I see no basis for interpreting the expression "an interlocutory order" in s 57(1)(c) of the Crimes (Appeal and Review) Act any differently from the way those words have been interpreted where they appear in the composite expression "an interlocutory judgment or order" in s 5F of the Criminal Appeal Act. See also Salter v Director of Public Prosecutions (NSW) (2009) 75 NSWLR 392; [2009] NSWCA 357 where the Court of Appeal held that the word "order" is narrower than "judgment" and that, for the purposes of s 53(3)(b) of the Crimes (Appeal and Review) Act - which is in relevant respects equivalent to s 57(1)(c) - a decision or ruling in the course of a proceeding that does not command that anything be done or not done is not an "order". I will apply the decisions on s 5F in determining whether there is an appellable order in the present case.
The Director has endeavoured to persuade the Court that by upholding the objection to the recorded interview the learned magistrate has in substance rejected the whole prosecution case on one or more of the charges against the defendant. In an endeavour to assess that submission I have examined the Crown Case Statement that was served on 23 January 2020. It foreshadows that evidence of the following kinds will be led: 1. Evidence of association and communications between the defendant and the other persons charged, including call charge records and Cellbrite downloads of message content from May 2017. 2. Recordings of the defendant's calls to the police assistance line in May 2017 and in February 2018, in which she said that she had only one set of keys to the vehicle. 3. Evidence of the condition of the vehicle when it was recovered on each occasion, including that there was no sign of forced entry or interference with locks and that the person who was in possession of the vehicle when it was recovered in March 2018 had a factory key. The ignition mechanism was not damaged. 4. Intercepted phone calls between Detective Senior Constable Roberts and the defendant in October and November 2018. DSC Roberts was investigating the theft of the vehicle. In one of these calls the defendant proffered suggestions as to how a person who took the vehicle might have obtained a key. 5. An intercepted phone conversation between the defendant and her former partner on 11 November 2018 in which she discussed their daughter being under investigation for fraud. 6. Conversations between the defendant and her daughter, obtained from a listening device installed in the defendant's home under warrant. 7. Evidence of James Clark who would say that he was recruited by Glen Stone and Gavin Dunn to remove the motor vehicle in February 2018, to give the appearance that it had been stolen, and that he was provided with a key for the purpose.
In submissions the Director referred the Court to parts of the recorded interview in which the defendant gave answers that are said to have been false, concerning material aspects of the allegations against her. It is submitted that she was untruthful in telling the investigating officers that, up to the point when DSC Roberts phoned her on 6 November 2018, she had been "oblivious" to there being any investigation by the insurer of fraud in relation to the removal of the vehicle in February 2018. The Director submits that she was also untruthful in stating that DSC Roberts' phone call was the first intimation to her that Gavin Dunn was under suspicion in connection with the car thefts.
The prosecution would also rely upon answers given by the defendant to the effect that when her car was recovered in May 2017, after the first removal, "a thought went through my head that maybe [Gavin Dunn] had the car". In subsequent answers the defendant said that after receiving DSC Roberts' call on 6 November 2018 her daughter told her that Gavin Dunn had said "he could take the car", apparently referring to May 2017. She said that her daughter had then showed her messages on the daughter's phone dating from May 2017 in which reference was made to "gangsters" having seized the vehicle.
The Court has not been shown the full brief of evidence against the defendant. From the materials tendered by the Director in these proceedings, even with the assistance of counsel's submissions, I cannot be satisfied that the recorded interview can realistically be characterised as the whole prosecution case on any of the charges against the defendant. I am not satisfied of the Director's proposition that, by analogy with R v Bozatsis and Spanakakis, R v Lisoff and R v O'Neill, her Honour's ruling can be treated as "an interlocutory order" in respect of which leave to appeal may be granted pursuant to s 57(1)(c) of the Crimes (Appeal and Review) Act. If I am wrong in that conclusion, this certainly would be a strong case for a grant of leave. There is a clear legal error in the learned magistrate's ruling and the exclusion of the recorded interview has deprived the prosecution of a piece of evidence that is at the least significant.

Jurisdictional error

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].
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].
In that case the High Court concluded that the decision of a judge of the District Court of South Australia to stay criminal proceedings against a defendant who claimed to be indigent was a decision on "a question of fact involving an element of discretionary judgment. Their Honours said (at 186): Regardless of whether it be viewed as a question of law or a mixed question of law and fact, however, its resolution lay within the primary authority of the trial judge. If Judge Russell fell into error in assessing the effect of the majority judgment in Dietrich v The Queen or in concluding that the appellant's inability to obtain legal representation was through no fault on his part, that error was within jurisdiction. It was not a jurisdictional error for the purposes of certiorari.
In Kirk v Industrial Relations Commission (2010) 239 CLR 531; [2010] HCA 1 it was held that the Industrial Commission of New South Wales had made two jurisdictional errors in the conduct before it of a prosecution for contraventions of occupational health and safety legislation. The first error was in the interpretation of provisions by which employers' duties were defined in general terms. Pursuant to the interpretation adopted by the Commission, it had permitted the prosecution to proceed without the acts or omissions alleged to have constituted the breach ever having been identified. The second error was that the Commission "misapprehended a limit on its powers by permitting the prosecution to call [the principal of the employer company] at the trial". The plurality applied the above-quoted passages from Craig v South Australia in concluding that these were jurisdictional errors.
In LS v Director of Public Prosecutions (NSW) [2011] NSWSC 1016 a Children's Court magistrate had ruled that the prosecution could call the mother of a young person who faced charges before that court. Johnson J held that the magistrate's ruling was based upon an erroneous construction of ss 18 and 19 of the Evidence Act. His Honour determined that the decision was not amenable to appeal under the Crimes (Appeal and Review) Act but that the error was jurisdictional, enabling an order in the nature of certiorari to be made, quashing the ruling.
In Director of Public Prosecutions (NSW) v Izod [2020] NSWSC 381 the defendant and his solicitor were charged with doing acts with intent to pervert the course of justice. The prosecutor tendered transcripts of intercepted phone conversations in which the defendant and his solicitor appeared to arrange for a false medical certificate to be procured, upon which an adjournment of an earlier prosecution was sought. The defendant asserted legal professional privilege over the communications, pursuant to s 118 of the Evidence Act. In determining whether privilege had been lost by misconduct, the magistrate erred in the application of s 125. Instead of applying the statutory test of whether there were reasonable grounds for finding that the communications were in furtherance of the commission of an offence, Simpson AJ held that "the magistrate can plainly be seen to have asked whether, in fact, the communications were made in furtherance of the offences". Simpson AJ held that this was a jurisdictional error for which relief could be granted pursuant to s 69 of the Supreme Court Act.
On the basis of these authorities I conclude that the learned magistrate's reversal of the onus of proof regarding the lawfulness of the defendant's arrest was a jurisdictional error. Her Honour misapprehended the limit upon her power to proceed with an evaluation of whether the desirability of admitting the recorded interview outweighed the undesirability of receiving material that had been obtained in contravention of an Australian law. That power was not enlivened unless the defendant discharged her burden of proving that the arrest, which was the occasion of the police questioning, had been unlawful. Her Honour purported to exercise the power on the insufficient basis that the Crown had not affirmatively proved that the arrest was compliant under s 99 of the Law Enforcement (Powers and Responsibilities) Act.

Orders

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.
Upon the handing out of this decision the parties will be heard as to costs.

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Criminal Appeal Act 1911(NSW)

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