Jacobson v Rogers

(b) to the extent that it does not constitute a question of law - a question about how a judicial discretion should be exercised or whether a judicial discretion has been properly exercised.

(1) A court by which a person has been, is being or is to be tried or sentenced for an indictable offence may reserve for consideration and determination by the Full Court a relevant question on an issue-

(b) relevant to the trial or sentencing of the defendant,

and the court may (if necessary) stay the proceedings until the question has been determined by the Full Court.

(2) A relevant question of law must be reserved for consideration and determination by the Full Court if-

(a) the Full Court so requires (on an application under this section or under another provision of this Part); or

(b) the question arises in the course of a trial that results in an acquittal and the Attorney-General or the Director of Public Prosecutions applies to the court of trial to have the question reserved for consideration and determination by the Full Court.

(3) Unless required to do so by the Full Court, a court must not reserve a question for consideration and determination by the Full Court if reservation of the question would unduly delay the trial or sentencing of the defendant.

(4) If a person is convicted, and a question relevant to the trial or sentencing is reserved for consideration and determination by the Full Court, the court of trial or the Supreme Court may release the person on bail on conditions the court considers appropriate."

Section 348 of the Act provides that "court" means the Supreme Court or the District Court.

The questions of law are said to be questions on an issue antecedent to the trial of the respondents on an Information filed in the Supreme Court: see s350(1).

The respondents submit that the Court does not have power to make the order sought. Alternatively, they submit that in the exercise of its discretion the Court should decline to require the judge to reserve the questions of law. When application was made by the Director to her, the judge declined to do so.

I consider that the Court has power to make the orders sought, but should not do so in the exercise of its discretion. The application made by the Director should be dismissed.

My reasons for so deciding depend in part upon the history of the criminal proceedings. It is necessary to state that history before giving my reasons. The history is drawn from earlier decisions of the trial judge and of this Court.

The respondents are charged on Information with 64 offences. The substance of the offences is abuse of public office. Some of the offences alleged are common law offences. Some are offences under s251 of the Act.

Most of the alleged offences were committed between 1988 and 1992. The respondents were first arraigned in October 1995. The original Information has been replaced by another Information.

The Information was challenged on a number of grounds. Among the submissions made were submissions that the Information charged offences not known to the common law, and that, if the offences were known to the common law, they had been abolished by amendments to the Act. The judge reserved for consideration and determination by this Court a number of questions of law arising out of those submissions. The questions were answered in July 1996: Question of Law Reserved (No.2 of 1996) [1996] SASC 5674; (1996) 67 SASR 63.

For reasons not clear to me (nor do they matter) the trial did not resume until April 1997. The respondents then submitted that the judge should, in the exercise of her discretion, exclude from evidence a large number of documents held by police officers which the police proposed to tender. The documents are central to the prosecution case. The submissions involved consideration by the judge of a number of issues. They included the question of whether the documents had been handed over voluntarily or seized pursuant to a search warrant, whether the police officers concerned had adverted to the possibility of legal professional privilege attaching to the documents, and the response of the police officers to the possibility of the documents being the subject of a claim of legal professional privilege. After hearing a good deal of evidence, on 22 May 1997 the judge ruled that much of the material held by the police would be excluded from the evidence at trial. Without this evidence the prosecution case cannot succeed, at least on most of the counts in the Information.

The Director of Public Prosecutions then applied to the judge to reserve for the consideration of this Court two questions of law said to arise from the judge's decision. The judge declined to do so. She held that s350 of the Act did not empower her to do so. In any event she would have declined to do so, because of the delay that had occurred and because she considered that the questions framed by the Director did not reflect the issues raised by her ruling. That decision was delivered on 29 July 1997. There had been some delay by the Director in making the application to the judge.

The Director then applied to the Full Court to require the judge to reserve the two questions of law. However, the Court at first was not asked to determine whether the judge should be required to reserve questions of law, or to determine the terms of those questions. It was asked to determine only the question of whether it had power to make the order. The Court decided that it had that power and delivered its judgment on 7 November 1997: Application for Reservation of Question of Law (1997) 69 SASR 550. Then the question of whether the judge should be required to reserve the questions was argued. On 23 December 1997 the Full Court held that the judge should be required to reserve the two questions proposed by the Director: Application for Reservation of Question of Law (No.2) (1997) 196 LSJS 1. Then the Full Court heard submissions on the appropriate answers to the questions. On 24 April 1998 the Full Court answered the questions: Question of Law Reserved (No.1 of 1998) [1998] SASC 6634; (1998) 70 SASR 281. The questions that the Full Court answered were expressed in general terms, and did not raise directly the correctness of the decision by the judge to exclude the evidence. Nevertheless, the answers given suggested that the judge had erred in law in deciding to exclude the evidence.

The present respondents applied to the High Court for special leave to appeal against that decision. On 11 December 1998 the High Court refused to grant special leave. The Court referred to the undesirable consequences of fragmentation of the criminal process by interlocutory appeals. It also said that

"... the general terms in which the questions here were framed and answered by the Court of Criminal Appeal of South Australia makes this an undesirable vehicle for a grant of special leave"

The Court said that it expressed no view as to the correctness or otherwise of the propositions of law found in the judgment of the Full Court.

The Director of Public Prosecutions then asked the judge to reconsider her ruling in light of the answers given by the Full Court. In reasons published on 26 March 1999 the judge declined to do so. She had previously excluded the evidence on two bases. She took the view that one of those bases still applied. She considered that the decision of the High Court in Jacobson v Rogers [1995] HCA 6; (1995) 182 CLR 572 determined one of the questions of law decided by the Full Court in a manner contrary to the decision of the Full Court, and in a manner that accorded with the view that she had originally taken. The High Court decision had not been drawn to the attention of the Full Court when it was considering the answers to the questions of law.

The judge made a finding that the police officers in question obtained possession of the relevant documents by executing a general search warrant that one of them held. It was not clear from the judge's earlier reasons whether she had so found, but she now made it clear that she did so find. She held that in executing the warrant and seizing the documents from a person, not one of the respondents, the police officers in question were aware of the possibility that a claim of legal professional privilege could be made in respect of some of the documents, although no such claim was made by the person in possession of them then or later. Nor has such a claim been made by any person since then. She held that the police officers did not adequately consider the implications of that possibility. Nor did they allow an opportunity for a claim of legal professional privilege to be made. Accordingly, she concluded that the warrant was not executed in a reasonable manner. She expressed her conclusion as follows:

"I find that the warrant was not executed in a reasonable manner. Therefore the evidence was improperly or unlawfully obtained. In the circumstances, the evidence so obtained should be excluded. I therefore decline to revoke or vary the ruling made by me on 21 May 1997."

I emphasise that even now there is no suggestion that any person has made a claim of legal professional privilege in respect of the documents. Nor has the judge decided whether or not such a claim, if made, would succeed. The decision proceeds on the basis that when the documents were seized the police officers were aware of the possibility of a valid claim of legal professional privilege in respect of the documents.

The Director then asked the judge to reserve for consideration by the Full Court further questions of law. The questions are as follows:

"(1) As a single judge of the Supreme Court am I bound by the answers given by the Court of Criminal Appeal on questions of law referred to that Court?

(2) If the answer to question (1) is yes, am I bound to apply the answer given on question (2) by the Court of Criminal Appeal on 24 April 1998 to this case?

(a) Is the execution of a warrant invalid unless the person executing the warrant affords a reasonable opportunity to the person in possession of any material to be seized pursuant to the warrant to claim legal professional privilege?

(b) On the facts as found in my Ruling of 21 May 1997, as varied by my Ruling on 26 March 1999, was the execution of the warrant invalid?"

Question (3)(a) more or less, although not precisely, raises the same question as the second question already answered by the Full Court. It also raises the basis of the judge's decision to adhere to her earlier decision that the relevant evidence should be excluded. However, it does so in rather general terms.

The judge considered that the proposed questions did not address the factual situation before her. She said that question (3)(b) was a question of fact. I respectfully disagree, but there is no need to go into that matter. She then said:

"More significantly, however, I believe the situation now reached constitutes a delay which is undue. That delay will be exacerbated by a further referral to the Court of Criminal Appeal. The provisions of s350(3) therefore apply. In addition, I consider the comments of the High Court in Elliott and Frugtniet to be apposite to the circumstances which have arisen in this case. I therefore decline to make the referral sought by the DPP."

On 14 April 1999 the Director applied to the Full Court to require the judge to reserve for its consideration the same questions of law. The Court heard the application on 21 May 1999.

As appears from the above summary, this Court has already decided that it has jurisdiction to grant the Director's application. However, the respondents submitted that arguments not previously raised led to the conclusion that the earlier Full Court decision is wrong.

The submission is that s350(2)(a) of the Act should be interpreted as giving the Full Court power to require a judge of the District Court to reserve a question, but as not giving the Full Court power to require a judge of the Supreme Court to do so.

In brief, the submission proceeds as follows. The Full Court has no power to make an order by way of judicial review directed to a judge of the Supreme Court sitting as such. Before the enactment of s350 a judge of the Supreme Court presiding over a trial on Information could not be compelled to state a case for the consideration of the Full Court. I agree with each of those submissions. The next submission is that Parliament should not be taken to have made a fundamental change to the powers of the Full Court in relation to a judge of the court unless it is quite clear that Parliament has done so. I agree with that submission. Then it is submitted that the absence of any power vested in the Full Court to compel a single judge to obey a requirement made under s350(2)(a) of the Act suggests that Parliament could not have intended that the power conferred by the provision should be exercised in relation to a judge of the Supreme Court. It is further submitted that such a requirement could be enforced against a judge of the District Court by way of proceedings for judicial review, and that the ability to enforce a requirement made of a District Court judge, and the inability to enforce a requirement made of a Supreme Court judge, leads to the conclusion that s350(2)(a) can be exercised only in relation to a judge of the District Court and not against a judge of the Supreme Court.

The respondents' argument concedes that the Full Court has power to require a judge of the District Court to reserve a relevant question for its consideration. The only issue is whether this power applies in relation to a judge of the Supreme Court. There is no room for the operation of the presumption that Parliament is not intended to erode fundamental common law principles. It is clear that Parliament intended to allow a criminal trial to be interrupted, and to allow a question to be reserved that might deprive a person of the prospect of an acquittal. The only issue is whether the power can be exercised in relation to a judge of the Supreme Court.

There is no reason why Parliament would have intended to distinguish between a judge of the Supreme Court and a judge of the District Court in this respect. The absence of a means to compel a judge of the Supreme Court to comply with a requirement made by the Full Court is not of any significance. The functioning of the Supreme Court does not depend upon the Full Court having power to compel obedience by a single judge of the court to a decision or order of the Full Court. The functioning of the court rests rather on the premise that decisions and requirements of the Full Court will, as a matter of course, be complied with by single judges of the court. The relationship of a single judge of the Full Court is not to be analysed in terms of the availability of compulsory remedies to secure obedience. For that reason, there is no significance in the absence of a power to enforce, as against a single judge of the Supreme Court, a requirement made by the Full Court under s350(2)(a).

There is no reason to read down s350(2)(a) in the manner suggested. The Full Court has power to make the order sought.

Section 350(2)(a) of the Act confers on the Full Court a general discretion. The discretion is to be exercised bearing in mind the purpose of s350, the context in which the power operates, the circumstances of the particular case, the interests of justice and any relevant matters for consideration that emerge from the terms of s350.

As is the case with most general discretions, it is not possible or even useful to attempt to state exhaustively, and in the abstract, all of the matters to be considered in the exercise of such a general discretion. What I have just said is no more than an attempt to indicate the general nature of the matters to be considered.

The purpose of s350 is to enable a relevant question to be determined by the Full Court. But for that section, a relevant question could be determined in criminal proceedings and be incapable of review unless there is a conviction and then an appeal by the accused person. That is so because there can be no appeal from an acquittal. The section contemplates that a relevant question may be considered and determined by the Full Court before the trial proper begins, while it is in progress or after an acquittal. The fact that a relevant question can be considered and determined before a verdict has been given indicates that Parliament contemplated a relevant question being determined at a time that would enable the Full Court decision to guide a judge in the making of a decision and, I consider, to reconsider a decision already made. However, for reasons that I will indicate shortly, there are strong reasons why the power conferred by s350(2)(a) should be exercised with restraint when its exercise will interrupt a trial, or is sought with a view to having a trial judge review a decision already made.

Bearing in mind that Parliament has not conferred upon the Director of Public Prosecutions a right of appeal against an acquittal, it is reasonable to assume that Parliament envisaged the use of s350 mainly in relation to relevant questions that raise an important question of law or a question of law of general application. Parliament could not have intended that the Full Court would exercise its powers under s350 to provide, as a matter of routine, a process for reviewing decisions by trial judges made in the ordinary course of trying a case. The routine use of the power would confer on the Director something like a right of appeal against an acquittal. The terms in which and on which the power is conferred suggest to me that Parliament envisaged it usually being exercised when there is a particular reason to do so. The fact that a relevant question involves an important question of law or a question of law of general application, would be a reason (not necessarily decisive) for doing so. That is not to say that there will not be cases in which an aspect of the case itself, or the impact of a decision upon a case, is a reason for the exercise of the powers under s350. But I consider that the usual basis for the exercise of the power will be the importance of the relevant question.

What I have said is directed mainly at applications for the reservation of a question before verdict.

The power is to be exercised in connection with a criminal trial. The courts have long had power to entertain an appeal against a conviction. But in South Australia there is still no power to entertain an appeal against an acquittal of an offence tried on Information in a superior court. That is generally the position throughout Australia, as far as I am aware. The relevance of this is that an exercise of the power with a view to having a judge reverse a decision that will, or is likely to, lead to the acquittal of a person charged, entrenches upon a fundamental principle that there be no appeal against acquittals. Parliament has allowed that principle to be entrenched upon. It has done so by conferring the power that it has conferred. But a court asked to exercise the power must be mindful, if it is the fact (and it appears to be here) that the Director of Public Prosecutions seeks to reverse a decision that would result in an acquittal. Of course, that will not always be so.

If the court is asked to consider a relevant question, with a view to it giving answers that might result in the reversal of a decision that would otherwise lead to an acquittal, there is no direct interference with the equally fundamental principle against double jeopardy. However, considerations that underpin that principle are again relevant to the exercise of the discretion.

Another relevant factor is the longstanding reluctance by appeal courts to interfere with the progress of a criminal trial, and to fragment it: for recent observations on this point see R v Elliott (1996) 185 CLR 250 at 157 and Frugtniet v Victoria [1997] HCA 44; (1997) 71 ALJR 1598 at 1602. There are various reasons for this. It is not necessary to enumerate them here. However, anything which contributes to delay is to be avoided if that is practicable. These days courts are making a considerable effort to expedite the criminal process. In most cases, the reservation of questions of law will contribute to delay.

It should be noted that a trial judge must not reserve a question if that "would unduly delay the trial or sentence of the defendant": s350(3). The Full Court may require a judge to reserve a question despite that, but the provisions of the section indicate that Parliament regards delay as an important matter.

Each of these matters requires careful consideration in the present case. The ruling that the prosecutor would have the judge reverse is a ruling that is likely to result in an acquittal of the respondents. Applications to this Court have resulted in fragmentation of the trial. Applications to this Court have contributed to a substantial delay. It is about 3 years and 7 months since the respondents were first arraigned. It is just over 2 years since the ruling which the Director would have the trial judge reverse.

The question of the limits upon the powers of a police officer executing a search warrant is an important question. I mean here the limits that arise when the warrant is to be used to seize documents that might be the subject of a claim of legal professional privilege. The question is likely to arise again. But it is not a newly discovered issue.

The question of law that arises from the judge's ruling can be resolved by the Director requiring the judge to reserve questions of law after an acquittal, if that occurs: s350(2)(b). It is not necessary to grant this application to enable the question to be answered.

The offences that are charged on the Information are serious offences. Failure to grant the application is likely to lead to an acquittal. That matter influenced the Full Court in December 1997, and is still a matter to be weighed in the balance. On the other hand, the exercise by the Full Court of its powers has not yet resolved that issue.

I must say that I now regret that I agreed to answer questions expressed as generally as the questions that I answered before: Question of Law Reserved (No.1 of 1998) [1998] SASC 6634; (1998) 70 SASR 281. Answering questions expressed as generally as the questions were has given rise to a situation in which the judge has decided that the answers given did not fit the facts as found by her. It would have been better if the question were tied to specific facts or to findings of fact. Undeterred by this experience, the Director has now proposed questions which, to my mind, suffer from the same defect of undue generality. Question (3)(a) in particular is not tied to the judge's findings, set out above, relating to the state of mind of the police officers executing the search warrant. Question (3)(b) might remedy the problem, but does not identify the relevant facts. In argument before this Court the Solicitor-General said that the Director was content to accept questions reformulated by the Court in a manner that would overcome any difficulty with the form of the questions. Reformulating the questions could result in further delays. It would be desirable for the Court to hear submissions on the proposed reformulated questions, before answering them.

In the light of what has happened, it is quite possible that, however the Court answers the questions, there will be a further application to the High Court for special leave to appeal, and further interruptions to the trial process.

I am not confident that even if the questions are reformulated, answering the question will resolve the status of the excluded evidence. So far, there has been no finding that the documents in question are the subject of legal professional privilege. As far as I am aware, no claim of privilege has been made. There remains a risk that the judge will yet be asked to determine that question, and if she finds that some or all of the documents are privileged, a further basis for their exclusion from evidence might arise.

It is necessary to weigh up each of these matters. Most of them were present when a previous Full Court required the judge to reserve questions for the Full Court's consideration, but events since then have shown more clearly the difficulties in this case resulting from the process that the Director has invoked. Delay is also of more significance now than it was then.

Taking everything into account, and in particular the delay, I am of the view that the Full Court should not interfere once more with the course of the trial. I consider that the point has been reached at which, in the interests of justice, the trial should be allowed to take its course and the questions of law that arise on the judge's ruling should be left for resolution after a verdict has been reached.

For those reasons I would refuse the application by the Director of Public Prosecutions.

DUGGAN J. I would refuse the application of the Director of Public Prosecutions for the reasons given by the Chief Justice.

I wish to add a few observations on the topic of the discretion of the Full Court to direct a judge to reserve a question of law for consideration by the Full Court pursuant to s350(2)(a) of the Criminal Law Consolidation Act 1935.

In my view the cases will be rare in which such a direction is appropriate. The circumstances of the present case provide a suitable illustration of why that is so. In the first place, there is a concern which exists in all cases that a criminal trial should not be fragmented and that there should be no interference with the trial except in a clear case. The trial judge considered these matters and took them into account when refusing to state a case. Then there is the question of delay which is of particular concern in the present case. Finally the application to the learned trial judge to refer the matter to the Full Court was made after her ruling on the point was handed down. A direction to the trial judge to reserve the issue for the consideration of the Full Court in these circumstances would be tantamount to allowing the prosecution a right akin to an appeal. (cf R v Tedge [1979] WAR 12 at 14) In the event of an acquittal, the Director of Public Prosecutions has the right to have a relevant question referred to the Full Court. This is a far more appropriate remedy to meet the circumstances of a case such as the present.

WICKS J I would refuse the application of the Director of Public Prosecutions for the reasons given by the Chief Justice.