By summons filed on 15 April 2016 Thomas Feeney, the plaintiff, seeks leave to appeal against the decision of Stoddart LCM to set aside a subpoena issued to the Commissioner of Police, the defendant (the Commissioner). Leave is sought pursuant to s 53(3)(b) of the Crimes (Appeal and Review) Act 2001 (NSW) which provides that any person against whom an interlocutory order has been made by the Local Court in relation to that person in summary proceedings may appeal to this Court, but only by leave and on a ground that involves a question of law alone.
All references in these reasons to legislation are to the Crimes (Appeal and Review) Act unless otherwise stated.
In order to address the issues that arise, and to do justice to the submissions, I propose to set out more of the factual background than is required for the determination of whether leave ought be granted.
[2]
Background
At the request of Mr Feeney, subpoenas were issued in NSW Police v Thomas Feeney 2015/256168, which were summary proceedings in the Local Court brought by a police prosecutor against him for various summary offences said to have been committed shortly after midnight on 23 August 2015.
On 10 February 2016 a subpoena was issued, at the request of Mr Feeney, to the NSW Police Service. The schedule to the subpoena read:
"Subpones [sic]
CCTV cam of court House on 3/2/2016 of police time entered and left who called them. WHAT STATION THEY WERE FROM. WHO REQUESTED THEM TO BE IN A PUBLIC LOCAL COURT WITH GUNS ON 3.2.16.
JOB LOG OF THE 3 OFFICERS IN QUESTION. ON THE 3.2.16 AND THERE RANK
WORK DIARY
NAMES
WHO PAID FOR POLICE DUTY ON THE 3.2.16 WHAT GROUNDS WERE THEY THERE.
IN A CRIMINAL PROCEDURE WHERE THE POLICE EVIDENCE IS BEING DISPUTED THE 3 MEMBERS WERE THERE TO HEAR THE MATTER & REPORT BACK"
When the matter came before the Local Court on 24 February 2016, Mr Feeney called on another subpoena which sought GPS tracking records of certain police cars on 24 August 2015. The police prosecutor queried the relevance of the subpoena (having regard to the date on the charge sheet). Magistrate Stoddart confirmed 23 August 2015 as the date of the charges and observed in the course of the debate that whatever happened on 24 August 2015 in terms of GPS tracking was irrelevant. It became apparent that Mr Feeney had caused several other subpoenas to be issued, many of which sought material which appeared to be irrelevant. His Honour informed Mr Feeney that he was obliged to identify a legitimate forensic purpose for the subpoenas which were issued at his request. Magistrate Stoddart allocated 28 April 2016 for the hearing of the principal proceedings and, at Mr Feeney's request, allocated 17 March 2016 at 2pm for the hearing of any matters concerning subpoenas.
By notice of motion filed on 17 March 2016 the Commissioner applied to set aside the subpoena set out above (issued on 10 February 2016) as an abuse of process on the ground that it lacked a legitimate forensic purpose and represented an impermissible fishing expedition. On 17 March 2016, Luke Feeney, Mr Feeney's brother, provided a medical certificate to the Court which stated that Mr Feeney had a throat infection on that day. Mr Watts, who appeared for the Commissioner, sought that the matter be stood over until 2pm on the following day on the grounds of Mr Feeney's absence and undertook to inform Luke Feeney, who was outside the court at the time, of what occurred and to endeavour to contact Mr Feeney direct.
At 2pm on 18 March 2016, the matter was called. A further medical certificate had been provided from the same medical centre, but from a different doctor, which indicated that Mr Feeney was suffering from a "medical condition" for which he was receiving treatment and was unfit to attend court from 18-24 March 2016 inclusive. Mr Watts, who again appeared for the Commissioner, asked that the motion be dealt with in Mr Feeney's absence. The Magistrate, who was satisfied that Mr Feeney was aware that the matter was to be heard on 18 March 2016, refused to adjourn the motion. His Honour dealt with it ex parte by setting aside the subpoena set out above and confirmed the hearing date of 28 April 2016 for the principal proceedings.
On 24 March 2016 Mr Feeney filed an application for annulment of the order setting aside the subpoena pursuant to s 4 of the Act. The application came before Douglass LCM on 5 April 2016 and was adjourned to 12 April 2016 on the ground that the Commissioner did not appear, as he had not been served with the application. On 12 April 2016 Mr Watts appeared for the Commissioner. The application was dismissed on the grounds that the jurisdiction under s 4 arises only in respect of a conviction or sentence and not in respect of an interlocutory order. In the course of argument, Mr Watts referred Mr Feeney to this Court's jurisdiction to review interlocutory orders made by the Local Court under s 53.
On 15 April 2016, Mr Feeney filed the summons referred to above, which commenced the present proceedings in this Court, in which he sought to challenge the decision of Stoddart LCM to set aside the subpoena.
On 28 April 2016, the summary proceedings were heard in the Local Court, at the conclusion of which Mr Feeney was convicted of, and sentenced for, use offensive language and resist or hinder police.
On 29 April 2016 Mr Feeney lodged an all-grounds appeal pursuant to s 11 in the District Court at Wollongong against his conviction and sentence. He also sought leave under s 18(2) to adduce fresh evidence at the hearing of the appeal. In the District Court proceedings, he caused to be issued a subpoena to the NSW Police seeking GPS tracking records of certain police cars on 24 August 2015.
The matter came before Haesler DCJ on 29 July 2016 who listed the District Court appeal for hearing on 3 February 2017 on the basis that it should be heard after the determination of Mr Feeney's application for leave to appeal in this Court.
On 16 September 2016 the Commissioner sought to set aside the subpoena issued by the District Court seeking GPS tracking records of certain police cars on 24 August 2015. The application came before Haesler DCJ who set aside that aspect of the subpoena on the ground that the charges related to 23 August 2015.
[3]
Consideration
In some circumstances a party may simultaneously challenge in this Court a decision of a Local Court pursuant to s 53 of the Act and appeal to the District Court against a conviction and sentence in the Local Court pursuant to s 11: Nand v Director of Public Prosecutions (NSW) [2016] NSWSC 85 at [61]-[64]. There is, however, a fundamental impediment to this course in the present case.
When Mr Feeney's summons was filed on 15 April 2016, this Court had jurisdiction to entertain it, as the Local Court proceedings were on foot. However, once the Local Court proceedings were concluded after final hearing on 28 April 2016, there was no longer any utility in a challenge to an order setting aside a subpoena in those proceedings. Moreover, the appeal to the District Court is in the nature of a rehearing (s 18(1) Crimes (Appeal and Review) Act). Accordingly, it was open to Mr Feeney to subpoena documents in that Court. As set out above, he has caused subpoenas to be issued in that Court, which have been dealt with by Haesler DCJ. The evidence does not reveal whether a subpoena in the same terms as the one set aside has been sought in the District Court.
Even if Stoddart LCM's decision involved a question of law alone (which it plainly does not because of the discretionary matters that were considered before the decision was made), it would not be appropriate to grant leave since the order made was subsumed in the orders made at the conclusion of the Local Court proceedings. It follows that leave to appeal ought be refused.
[4]
Parties' submissions
The Commissioner sought costs of the proceedings on a gross sum basis. Mr Parish, who appeared on his behalf, relied on an affidavit of Brad Watts affirmed 1 December 2016 and a Calderbank letter dated 20 July 2016 from the Crown Solicitor's Office (the solicitors for the Commissioner), which was expressed to be "without prejudice save as to costs". The letter said:
"The Commissioner considers that your Supreme Court appeal is an abuse of process in the circumstances where you have concurrently lodged a District Court All-Grounds appeal against your conviction and sentence in the Local Court case to which the subpoena that is the subject of your Supreme Court appeal relates. I note that Registrar Bradford in the Supreme Court made the same point on 27 June.
In the circumstances, I am instructed that if your Supreme Court appeal is withdrawn before 1 September 2016, then my client will not seek costs against you.
However, if the appeal is not withdrawn and the hearing of the Supreme Court appeal on 2 December 2016 results in orders favourable to my client, then my client will seek costs against you. My client reserves the right to tender a copy of this letter to the Court at the hearing on the question of costs.
I strongly urge you to seek legal advice regarding this letter and your Appeal generally. I note that you indicated in Court on 27 June that you had been refused Legal Aid and that you have lodged a Review of that decision. If you become legally represented, by Legal Aid or another lawyer, please provide this letter to them and ask them to contact me."
Mr Watts deposed to the fees relating to the proceedings in this Court and their reasonableness. By reason of the sequence of events and the fact that there have been proceedings in the Local and District Courts as well as this Court, the invoices of fees also cover work pertinent to those proceedings as well as these proceedings. Mr Watts has highlighted those items which relate to the proceedings in this Court. He has deposed that the Commissioner's costs and disbursements for this appeal are $12,444.25, exclusive of GST and seeks 80% of that amount.
Mr Feeney resisted an order for costs on several bases. First, he informed me that he had been told by Mr Watts that he should come to this Court. Secondly, he said that his father had recently died. Thirdly, he told me that he was on a disability support pension and could not pay any costs anyway.
I infer that Mr Feeney's first point relates to the reference to s 53 in the course of argument on 12 April 2016 at the hearing of Mr Feeney's s 4 application referred to above (at which point the Local Court proceedings had not yet been concluded and the avenue under s 53 to challenge an interlocutory order was still open). The second and third matters are germane to whether any costs order can be complied with, rather than whether a costs order ought be made.
[5]
Consideration
The present appeal is brought in the context of criminal proceedings, in respect of which costs orders are not generally made. It may be that Mr Feeney did not appreciate, until he received the letter of 20 July 2016, that the Commissioner would seek costs and that the jurisdiction to order him to pay the Commissioner's costs if he was unsuccessful arose under s 54(3) of the Act. Nonetheless, he was given the opportunity to withdraw his appeal and failed to take it in circumstances where he was warned that he was at risk as to costs. There was a significant element of compromise in the Commissioner's offer. I consider it to be appropriate to order him to pay the Commissioner's costs.
As to the amount of the costs order, I propose to quantify the costs to be paid in the amount of $5,000, exclusive of GST. I do not mean to suggest by the substantial discount which this involves that the costs charged by the Crown Solicitor's Office and counsel were not reasonable. However, where there are concurrent proceedings it is, in my view, appropriate to take a strict view of what costs are solely referable to proceedings where there is jurisdiction to order costs.
I am obliged by s 72 to state a time within which the costs must be paid. I propose three months.
[6]
Orders
I make the following orders:
1. Pursuant to s 53(3)(b) of the Crimes (Appeal and Review) Act 2001 (NSW), refuse leave to the plaintiff to appeal against the decision of Stoddart LCM on 18 March 2016.
2. Otherwise dismiss the summons.
3. Order the plaintiff to pay the defendant's costs of the proceedings, in the amount of $5,000, exclusive of GST, to be paid within three months of the date of this order.
[7]
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Decision last updated: 06 December 2016