Feeney v NSW Police

Supreme Court of NSW|2017-02-15|Before: Garling J

EX TEMPORE Judgment

On 20 September 2016 the applicant, Mr Luke Feeney, filed a summons seeking leave to appeal from an order made in the Local Court on 6 September 2016. The order was an interlocutory one in which the Local Court (Stoddart LCM) set aside part of a subpoena that had been issued in the Local Court on the basis that the applicant in this Court had not demonstrated a legitimate forensic purpose for the documents which were sought.

Right of Appeal

There is a very limited right of appeal from the Local Court to the Supreme Court in criminal proceedings. That right is to be found in s 53(3)(b) of the Crimes (Appeal and Review) Act 2001. That section is in the following terms: "(3) any person against whom: … (b) an interlocutory order has been made by the Local Court in relation to the person in summary proceedings may appeal to the Supreme Court against the order but only on a ground that involves a question of law alone and only by leave of the Supreme Court."

The Facts

According to the Facts, an off-duty police officer, Senior Constable Mark Deans, was present at the Kiama Bowling Club with a couple of friends partaking in refreshments at about 5.40pm. He observed Mr Feeney on the premises consuming intoxicating liquor. Senior Constable Deans decided to consume his drink outside on a verandah at the front of the bowling club. He stayed for some time with his friends. The Police Facts Sheet records that he observed that, at about 6pm, the accused "exited the location after being asked to leave". The Facts record a verbal exchange between Mr Feeney and Senior Constable Deans which, according to the police account was, or would if that account were accepted, constitute offensive behaviour.
At a point after 6pm, a senior member of the club's committee approached Mr Feeney and asked him to leave the club. According to the Facts, Senior Constable Deans went and attempted to assist the club member in that endeavour. The Facts say that at that time Mr Feeney began to walk towards Senior Constable Deans, coming within metres of him before being restrained and pulled away by his friends. Words which on any view would constitute offensive behaviour were said to have been exchanged in a loud and aggressive manner. I interpolate to say that in oral submissions before me, Mr Feeney was at pains to say that he did not accept the accuracy of the Facts; more importantly, the Local Court was so informed on 6 September 2016.
The Facts then include the following: "At this point the victim fearing he was going to be assaulted and for his own personal safety and other patrons at the location has contacted police via mobile phone requesting their assistance. The victim has done this whilst re‑entering the location and requesting the assistance of a further off-duty police officer to help remove the accused from the location. Both the victim and the off-duty officer exited the location, where they observed the accused had remained. Both the victim and off-duty officer then escorted the accused from the location. Whilst doing so, the accused continued to verbally taunt the victim and attempt to entice him into a physical confrontation. Fearing for his safety the victim has taken the accused in a headlock and informed him he was under arrest. The victim and off-duty officer have then used reasonable force to contain the accused and place him on the ground."
It is then said that a short time later police arrived on scene, approached Mr Feeney and handcuffed him. Other observations are then contained in the Facts.
The Local Court was informed by the solicitor for Mr Feeney generally of the facts as they were contended for by him. In particular, he informed the Local Court that his client contended that that statement of the Facts was inaccurate, and was largely a fabrication. What the solicitor said was: "What the defendant's instructions to me are is that Officer Deans and the defendant are well known to each other, they've had many times to cross each other's paths, and the defendant says that it was all a set-up."
The solicitor went on to say this: "So what the defendant's case is is that this was in effect a premeditated attempt by the police to ensure that they were there in numbers before any physicality occurred between Officer Deans and the defendant and that at no stage on the police brief did the defendant institute any physicality. So what the defendant's case is is that it was in effect a set-up, that he was a target for the police and that the police had prior to any incident occurring which warranted arrest already called other officers in."
The material before the Local Court indicated that there were four police cars or vehicles in attendance and counsel for the Commissioner before me accepted that those vehicles were adequately identified, that is to say the identity of the vehicles which attended at the scene was known to the Commissioner.
The contest in the Local Court was whether there was any legitimate forensic purpose in the GPS records being required for production in the proceedings. After argument occurred and submissions were made on the one hand that the GPS recordings were relevant and on the other that the subpoena, it ought be held, constituted an impermissible fishing expedition, the learned Magistrate came to his decision. He said this: "However the remainder of the subpoena, there was a motion filed of that part relating to GPS tracking be set aside. I have had a look at the material on file and I have heard oral submissions today in that regard and the motion is brought upon the basis that what is sought is the GPS tracking of four police vehicles for a period between 5.40pm and 7pm on the evening of 29 January."
His Honour then considered the requisite legal test for there being a legitimate forensic purpose. He said, if I may say, with respect, correctly, that a person seeking the production of documents needed to persuade the relevant court that there was a legitimate forensic purpose in the documents being produced and access being had. He noted that a defendant in criminal proceedings is "prima facie entitled to inspect any document which may give him the opportunity to pursue a proper and fruitful course in cross-examination".
His Honour then went on to discuss the questions which were before him. He identified that what was intended to be suggested at the final hearing of the proceedings was that there was a premeditated attempt by the police "with respect to the accused person to basically cause some trouble". He identified an argument that was put to him that the GPS tracking system would provide factual material which was capable of supporting the case to be advanced on behalf of Mr Feeney.
The dispositive reasoning of the Magistrate was contained in one paragraph. It was: "As indicated from what the authorities indicate that there must be something more than a fishing expedition. It must be on the cards that this information that is asked for will be able to genuinely assist the accused person at the hearing and therefore assist in the court determining whether or not the accused has a case to answer and whether or not as a result of the hearing it will assist the court in a material way with respect to evidence. It seems to me that given what is said that it would not be on the cards that this seeking of that particular information, as I said, it is believed that there were four police cars and what they were doing for an hour and twenty minutes immediately prior to attending the scene of an incident, a charge of common assault, excluded person failing to leave premises, offensive manner, intimidate police officer, they are the charges, IN MY VIEW A LEGITIMATE FORENSIC PURPOSE HAS NOT BEEN DEMONSTRATED FOR THOSE RECORDS TO BE PRODUCED AND THE SUBPOENA IS THEREFORE SET ASIDE IN THAT REGARD AND THE MOTION ON BEHALF OF THE COMMISSIONER OF POLICE IS THEREFORE GRANTED."
The balance of the transcript dealt with other procedural matters.

Summons in the Court

The Summons in this court sought leave to appeal, and for the appeal to be upheld, on the basis that there was in fact a legitimate forensic purpose for access to the GPS records and that there had been an error of law made in the order of the Local Court. As I noted earlier, this Court has a very narrow jurisdiction pursuant to the Crimes (Appeal and Review) Act to deal with interlocutory orders in summary criminal proceedings in the Local Court. First there must be an error of law, and secondly the case must be an appropriate one for leave to be granted. It is convenient to turn to the first of these questions.

Discernment

In my view it was demonstrably clear on the material that was before the Local Court that there was a legitimate forensic purpose for the production of the GPS records to the Court for inspection by Mr Feeney. A significant issue in the police case was the timing of what occurred. As the Facts demonstrate, the police officer in question arrived at the club at 5.40pm. He observed Mr Feeney drinking there but no interaction or any criminal conduct at all is said to have occurred until 6pm. The interaction which is then recorded, and to which I have earlier referred, led, it is said, to Senior Constable Deans fearing he was going to be assaulted and summoning police to attend to assist him. According to the Facts, the arrest of the defendant occurred at 6.30pm. Accordingly, there was a limited time between when Senior Constable Deans could have contacted police via mobile phones requesting their assistance, the events which followed culminating in the arrest of the defendant Mr Feeney.
What is said on the police case to have occurred in that limited time is the conduct described in the Facts, the occurrence of fear on the part of Senior Constable Deans; his contacting his colleagues; he and a fellow off-duty officer escorting the defendant Mr Feeney from the location; then putting the defendant in a headlock and informing him he was under arrest; with the police then attending at the scene to render assistance.
Given that the issue of timing, and whether or not all of the events described in the Facts occurred within that time, was a central question to the disputed facts upon the hearing of which the Local Court would be engaged, it seems to me clear that objective evidence obtained from GPS records as to what each of the police cars was doing in the period between 5.40pm and when they arrived at the scene is, first, relevant and, secondly, would be likely to show either that the police account of timing was correct or, on the other hand as the defendant claims, the cars were in fact summoned before any incident occurred at about 6pm. This is probative material for the hearing.
Of course, the records may not show that, because they will depend upon the movements of the individual cars. Some movements may be consistent with being summoned, some may not, but that of itself is not a reason to say that the records do not contain relevant and probative material nor that it is reasonably possible, that they will contain such material.
Accordingly, the Magistrate in my view has made a clear error in finding that a legitimate forensic purpose has not been demonstrated, but in making that error he has engaged in applying the correct legal test to the facts which were before him.

An Error of Law?

Whilst this is not the occasion to describe at length the difference between an error of fact and an error of law, I must confess that I am doubtful that an error made in the application of the correct legal test to the facts of which the Court has been informed constitutes an error of law. However, the defendant, who is the applicant in the case in this Court, appeared in person and it cannot be said that the difference between what constitutes an error of fact and an error of law is a matter which is easily or readily grasped, and certainly not by a layman.
It occurred to me in the course of submissions by counsel for the Commissioner for Police that the reasoning of the Magistrate, which I have earlier set out in full, could not be said to discharge the Magistrate's obligations to give adequate reasons. Although the Summons did not directly raise that matter as a basis for success, given that the Court was appraised of it, it seemed to me to be proper to ask counsel for the Commissioner for Police whether, if the Summons were to be taken to be amended to raise that as a ground first, if his client would object to it, and secondly whether any further time was needed in order to enable him to answer such an allegation.
Counsel for the Commissioner for Police, having taken instructions, commendably and in the proper discharge of his function as an officer of the Court, indicated that he could not stand in the way of that being raised as a ground in support of the summons and that he had had a sufficient opportunity to put all that he wished on that question.
On the authorities, a failure to give adequate reasons constitutes an error of law of a kind which seems to me to fall within the narrow statutory test posed by s 53(3)(b) of the Crimes (Appeal and Review) Act. The question of law identified is whether the Magistrate gave adequate reasons. In my view, and I say this with respect to the Local Court, which I acknowledge has a very heavy workload, and with respect to the particular Magistrate, who heard and disposed of this application with commendable efficiency, that nevertheless such reasons as were given do not explain adequately why there is no connection between the documents which were sought, the GPS records, and the issues which were to be ventilated at the hearing. As I have earlier demonstrated, there was a compelling connection between the two and if that was not to be upheld then the learned Magistrate needed to explain why that was not so. What he did was to give his conclusion, but in my view there was little if any reasoning in support of that conclusion. It follows that I am satisfied that there has been an error of law in the Local Court.

Grant of Leave

That is not the end of the matter. This Court must consider whether it should grant leave. There are a number of reasons why it might be argued that leave should not be granted. First, this is a summary criminal proceeding and, ordinarily, a court ought not intervene at an interlocutory stage in the conduct of that summary criminal proceeding, particularly when the applicant in the Court has the right, as does Mr Feeney, to appeal against any decision of the Local Court to the District Court.
Secondly, there is no matter of general principle to be identified in this case, nor is there any matter of general public importance. Finally, a decision on a subpoena prior to a hearing commencing does not preclude a party to summary criminal proceedings in the Local Court from seeking to issue a further subpoena at a later time on the basis that additional factual material has become available demonstrating the relevance of the documents which are being sought. These are all good reasons why, notwithstanding that there may have been an error of law in the Local Court, this Court would not grant leave to appeal.
On the other hand, I am told from the Bar Table that the proceedings in the Local Court have not yet been heard, and that they are in fact due to be heard tomorrow and the following day. To the extent that there has been an interruption in the criminal proceedings, that interruption has already occurred and, it seems to me, the matter can proceed expeditiously tomorrow and the next day. Secondly, there is always a reason in the interests of justice to grant leave to appeal if there has been demonstrable error in the Local Court and that error may impact upon the fair hearing of the charges against a defendant. Thirdly, it was not suggested to the Local Court, and it is not suggested in this Court, that the obtaining of the relevant records and the production of them would involve any oppression on the part of the Commissioner, that is to say it is not contended that to search to identify these records would be a lengthy, expensive or unduly burdensome process.
It is necessary in considering whether to grant leave to appeal that I weigh all of these matters up. In my view there has been a clear error of law, and that the records which were sought are likely, as objective material, to point strongly in favour of or against the prosecution case. It is in my view in the interests of justice, having regard to the other matters to which I have given attention, that the applicant be granted leave to appeal, that the appeal should be upheld and that the order of the Local Court be set aside.
I make the following orders: 1. Grant leave to the plaintiff Luke Feeney to appeal from the order of the Local Court (Stoddart LCM) made in Wollongong on 6/9/2016. 2. Order that the appeal be upheld. 3. Set aside the order made in the Local Court on 6/9/2016. 4. Direct that Exhibit B, a DVD, be returned to the plaintiff, Mr Feeney. 5. Order that Schedule B to the subpoena issued by the Local Court on 2/5/2016 be returnable before the Local Court at Kiama at 10am on 16/2/2017. 6. Order that these orders be issued forthwith.

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: 06 March 2017

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