Franklin v Commissioner of Police

Court of Appeal (NSW)|2018-09-11|Before: Beazley P, Johnson J

Solicitors: In person (Applicant) Norton Rose Fullbright Australia (Respondents) File Number(s): 2018/114522 Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Division Citation: [2018] NSWSC 310 Date of Decision: 14 March 2018 Before: Johnson J File Number(s): 2017/130695

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

The proceedings

The matter determined by the primary Judge was an application by the present applicant for leave to appeal from interlocutory orders made by the Local Court at Katoomba. The learned Magistrate (Toose LCM) refused to grant the applicant access to certain documents produced in response to subpoenas issued at his request to the Commissioner of Police and the Royal North Shore Hospital (RNSH). The primary Judge refused to grant leave to the applicant to appeal from the Magistrate's decision.
The dispute relating to the subpoenas arose in the course of summary criminal proceedings brought against the applicant. He has been charged with an offence against s 61 of the Crimes Act 1900 (NSW), in that he is alleged to have assaulted his wife at their home in Mount Victoria on 2 September 2016.
The Magistrate granted the applicant access to certain documents produced on subpoena relating to the investigation by the Police of the alleged assault. Broadly speaking, the documents to which the Magistrate declined to grant access related to medical treatment received by the applicant's wife before the alleged offence, Police records relating to two prosecution witnesses who would give evidence of complaints made by the applicant's wife, and a "Crime Stoppers" report based on information received on a confidential basis from members of the public.
The application for leave to appeal to the Common Law Division from the decision of the Local Court was made pursuant to s 53(3) of the Crimes (Appeal and Review) Act 2001 (NSW) (CAR Act), which provides as follows: "Any person against whom: (a) …, or (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 applicant's summons seeking leave to appeal to this Court named two respondents, the Commissioner of Police and a Senior Constable involved in the investigation that led to the prosecution of the applicant. The summons incorrectly stated that the application for leave to appeal to this Court was brought pursuant to s 53(3)(b) of the CAR Act. In fact the applicant's entitlement to seek leave to appeal to this Court is created by s 101(2)(h) of the Supreme Court Act 1970 (NSW), which permits an appeal by leave from an order of the Court in a Division on an appeal under Part 5 of the CAR Act. Section 53 of the CAR Act is within Part 5. Mr Bhalla, who appeared for the respondents, drew attention to the error in the summons seeking leave to appeal but did not submit that the summons was incapable of amendment to correct the error.
The applicant represented himself in the Local Court, the Common Law Division and in this Court. At one stage, however, he was a practising lawyer and therefore could be expected to have greater familiarity with court proceedings and procedures than most unrepresented litigants. The arguments he advanced in both the Local Court and the Common Law Division occupied considerable court time.

The Primary Judgment

The primary Judge noted that the RNSH had produced documents to the Local Court in response to the subpoena, but had filed a written objection to the applicant being granted access on the ground of absence of legitimate forensic purpose. The Magistrate gave the applicant the opportunity to identify a legitimate forensic purpose but upheld the RNSH's objection. The primary Judge pointed out that the RNSH was not joined as a party to the application for leave to appeal as it should have been. In any event his Honour detected no error of law in the approach taken by the Magistrate to the subpoena directed to the RNSH. [2]
The primary Judge recorded that the Commissioner of Police had objected to access being granted to certain documents on the ground of public interest immunity. In particular the Commissioner sought immunity in respect of the "Crime Stoppers" report. His Honour referred to a number of authorities stating the principles applicable to claims of public interest immunity and concluded that the Magistrate had acted consistently with established practice in considering the claim of public interest immunity in closed court in the absence of the applicant, and had not fallen into legal error in her approach to resolution of the public interest immunity claim. [3] His Honour noted that the Magistrate had inspected the relevant documents which had been annexed to a confidential affidavit made by an Acting Assistant Commissioner. [4]
The primary Judge recorded that the Magistrate had inspected the documents relating to the two prosecution witnesses and had satisfied herself that the documents could not serve any legitimate forensic purpose. [5] His Honour rejected the applicant's argument that the Magistrate had committed an error of law by holding that documents produced on subpoena could not serve a legitimate forensic purpose if they were relevant only to the credit of a witness. On a fair reading of the Magistrate's reasons she appreciated that documents relevant only to credit might serve a legitimate forensic purpose, but found that the particular documents in issue could not be relevant to the criminal proceedings. [6]
After providing additional reasons for concluding that the applicant had not established any error of law on the part of the Magistrate, the primary Judge made the following observations: [7] "80. Despite the limited avenue of appeal to this Court, I provided the [applicant] with ample opportunity at the hearing on 2 and 10 November 2017 to advance arguments in support of his claim for relief. I have considered those arguments in this judgment, perhaps in greater detail than is called for by the limited statutory avenue of appeal which is available. One reason for taking this approach was to resolve what appeared to be a heavily litigated issue by the [applicant] at the interlocutory level ahead of the summary hearing in the Local Court. It is appropriate that the way be cleared for the hearing and determination of the charge against him. 81. No error of law has been demonstrated with respect to the decisions under challenge in this Court. In any event, no proper basis has been demonstrated for a grant of leave to appeal to the [applicant] with respect to the Magistrate's decisions on the subpoena issues. No error of principle has been demonstrated, let alone one which is apt to cause any irregularity or injustice."

Reasoning

In the summons seeking leave to appeal to this Court, the applicant contended that the primary Judge misdirected himself in six ways: "1. Johnson J erred by misdirecting himself as to the meaning of 'question of law'. 2. Johnson J erred by misdirecting himself about bias. 3. Johnson J erred by misdirecting himself as to his obligations according to law when hearing an appeal when public interest immunity had been claimed. 4. Johnson J erred by misdirecting himself as to what constitutes error of principle as to cause irregularity or injustice justifying refusal to grant leave to appeal. 5. Johnson J erred by misdirecting himself as to when pressure of work by a judicial officer may excuse error justifying refusal to grant leave to appeal. 6. Johnson J erred by misdirecting himself that there was evidence to conclude on the balance of probabilities that Royal North Shore Hospital had objected to access to documents sought under subpoena."
One of the many difficulties facing the applicant was that the issues he sought to agitate related quintessentially to matters of practice and procedure. The Court is particularly cautious about granting leave to appeal on points of practice and procedure. As Jordan CJ observed over 70 years ago, unless a tight rein is kept upon interference with the decisions of trial judges on such matters, the results would be disastrous to the proper administration of justice. [8] In the present case, a charge alleging a domestic violence offence has still not been heard more than eighteen months after the Court Attendance Notice was served.
The applicant has already made one unsuccessful application for leave to appeal from the Magistrate's decision and has had the benefit of detailed and cogent reasons from a Judge of the Common Law Division explaining why the grounds of appeal lacked merit. The application to this Court was effectively an attempt to challenge the Magistrate's interlocutory rulings on matters of practice and procedure by way of a second appeal. The applicant did not identify any issue of principle arising from the challenge to the reasoning of the primary Judge. Nor was he able to identify any significant injustice that would be likely to occur if the application for leave to appeal was dismissed. [9] These would be reasons enough to refuse leave to appeal.
It is, however, appropriate to briefly comment on the grounds relied on by the applicant.
Ground 2 can be dismissed immediately. No claim of bias, whether apprehended or actual, was raised as a ground before the primary Judge.
Grounds 1 and 6 can be dealt with together. The primary Judge correctly identified what constitutes "a ground that involves a question of law alone" for the purposes of s 53(3) of the CAR Act, pointing out that it does not extend to an error of mixed fact and law. [10] His Honour also correctly concluded that the challenge to the Magistrate's finding that the documents produced by the RNSH could serve no legitimate forensic purpose did not involve a question of law alone and in any event revealed no error of law. Moreover, it would be inappropriate for this Court to grant leave to appeal in relation to the documents produced by the RNSH when it was not joined as a party to the summons seeking leave to appeal. The primary Judge pointed out to the applicant that the RNSH should have been joined as a party to the Common Law proceedings but no attempt was made by the applicant in this Court to remedy the omission. The proper joinder of parties was a matter for him to attend to.
Ground 3 complained that the primary Judge should have inspected for himself the documents in respect of which public interest immunity was claimed. But his Honour's role was to determine whether the application for leave to appeal involved a question of law alone and, if so, to determine whether the Magistrate had erred in law. The applicant did not refer to any authority suggesting that the primary Judge was obliged to inspect the documents himself. His Honour did not need to do so in order to address the issues before him.
Ground 4, as developed by the applicant in oral argument, was essentially a complaint that he had not been given access to the totality of the confidential affidavit claiming public interest immunity and that he had not received a transcript of the Local Court proceedings held in closed court. As the primary Judge explained, however, the procedure followed by the Magistrate was consistent with that laid down in the authorities and involved no error of law. The applicant did not put forward anything to suggest that the primary Judge erred in his reasoning and indeed the applicant appeared to concede that the authorities supported the procedure adopted by the Magistrate.
Ground 5 was misconceived. The primary Judge was not excusing an error of law by the Magistrate on the basis that her Honour was under considerable pressure in a busy list. The primary Judge was merely observing that the Magistrate had to make a number of rulings within a limited time and that appropriate allowance should be made in construing the ex tempore reasons for the time constraints and the volume of cases requiring decisions. [11]

Orders

For these reasons the Court dismissed the summons seeking leave to appeal and ordered the applicant to pay the respondents' costs.

Endnotes

Franklin v Commissioner of Police [2018] NSWSC 310 (Primary Judgment).
Primary Judgment at [40].
Primary Judgment at [68], [71], [79].
Primary Judgment at [69].
Primary Judgment at [58]-[59].
Primary Judgment at [61].
Primary Judgment at [80]-[81].
In re the Will of FB Gilbert (Dec'd) (1946) 46 SR (NSW) 318 at 323.
See Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28] (Gleeson JA, Macfarlan and Payne JJA agreeing) and cases cited there.
Primary Judgment at [19]-[21], citing among other authorities Williams v The Queen (1986) 161 CLR 278; [1986] HCA 88 at 287 (Gibbs CJ, Wilson and Dawson JJ agreeing), 301-302 (Mason and Brennan JJ).
See Director of Public Prosecutions v Illawarra Cashmart Pty Ltd (2006) 67 NSWLR 402; [2006] NSWSC 343 at [15]-[19] (Johnson J). 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: 19 September 2018

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