R v LB [2011] NTCCA 4
57 At a time when these reasons were substantially ready for publication and without any related request by either party for the matter to be re-listed for further submissions, we were referred by the appellant to the decision of the Court of Criminal Appeal of the Northern Territory in the abovementioned case. That was an appeal from a decision of Southwood J in proceedings which are described in the Court of Criminal Appeal's reasons as R v LB (2010) 26 NTLR 209. However we note that in that report, LB's name is included. Nonetheless we will adopt the nomenclature adopted by the Court of Criminal Appeal, assuming that there must have been some reason for anonymity.
58 At first instance LB was charged with failing to take an oath or affirmation when required to do so in an examination pursuant to s 24A of the ACC Act, contrary to s 30(2)(a) of that Act. Such offence is an indictable offence. The Board had determined that there be a special intelligence operation addressing indigenous violence and child abuse. LB was summoned by an examiner (the same examiner as in the present case) to give evidence. LB appeared in answer to the summons but refused to be sworn or to affirm. He was charged accordingly.
59 Prior to the empanelment of the jury LB indicated that he wished to challenge the validity of the Board's determination that there be a special intelligence operation on grounds which were broadly similar to those raised in the present case. He also sought to challenge the summons, again on grounds which were broadly similar to those in the present case. The matter was addressed by Southwood J in preliminary proceedings, apparently pursuant to s 26L of the Evidence Act (NT) which provided:
A court dealing with a matter on indictment may, if it thinks fit, hear and determine, before the jury is empanelled, any question relating to the admissibility of evidence and any question of law affecting the conduct of the trial.
60 Southwood J rejected the challenge to the validity of the determination but upheld the challenge to the validity of the summons. At [53] his Honour concluded that a summons could be issued only if three conditions were satisfied, namely:
1. There must be bona fide and rational reasons for the issue of a summons to a particular person in respect of a special ACC operation/investigation.
2. The examiner must record in writing the reasons for the issue of the summons to the person.
3. Before issuing the summons the examiner must be satisfied that it is reasonable in all the circumstances to do so.
61 At [55] and [56] his Honour said:
55 The third condition is not the same condition as the first condition. An examiner is required to record the reasons for the issue of the summons not the grounds on which he is satisfied that it is reasonable to do so. However, unless an examiner directs his mind to the nature of the relevant special ACC operation/investigation, and to the reasons for the issue of the summons including the nature of the matters about which the person who is to be summonsed is to be questioned, an examiner could not be satisfied that it was reasonable in all the circumstances to issue a summons to a witness. Unless there are bona fide and rational reasons for issuing the summons to a particular witness for the purpose of a special ACC operation/investigation an examiner could not be satisfied it was reasonable to issue the summons.
56 Both the first and third conditions are essential and indispensible requirement for the issue of a valid summons under the Act. If they are not fulfilled the summons issued by an examiner will be invalid and an examiner will not have jurisdiction to require a person who appears at an examination in response to the summons to take an oath and make an affirmation. If a person is not lawfully required to attend an examination, he cannot be required to take an oath or make an affirmation at the examination.
62 As in the present case the examiner recorded that he had regard to identified material for the purpose of being satisfied that it was reasonable to issue the summons. The material in question was a statement of facts and circumstances, legal submissions and "my general experience of the determination". Unlike the present case it seems that the statement of facts and the legal submissions had not been provided to LB in the course of the proceedings, or at least there is no suggestion that they had been supplied.
63 The "purpose of the summons" was said to be:
to require the attendance of [LB] … before an examiner for the following reason: to give evidence of federally relevant criminal activity involving indigenous violence and child abuse and the lawful [sic] sale, supply, trafficking or possession of illegal drugs in indigenous communities.
64 At [59] Southwood J said:
Based upon his consideration of the "statement of facts and circumstances", the "legal submissions" and his general experience of the determination of the board, Mr Anderson then goes on to record his satisfaction about various matters in the record of his decision to issue the summons. He does not state anywhere in the record of the examiners [sic] decision to issue the summons that he had regard to either the "statement of facts and circumstances" or the "legal submissions" for the purpose of considering the matters about which the accused may be questioned or how or why questioning the accused would further the purposes of the special operation. For example, Mr Anderson does not say the accused is a person who is likely to be able to provide information or intelligence about relevant criminal activity or who is able to identify persons involved in relevant criminal activity or that the accused is a person who may be engaged in relevant criminal activity. He does not do so in circumstances where the Act directs him to record the reasons for issuing the summons.
65 At [60] his Honour recorded his opinion that the examiner had failed to record the reasons for the issue of a summons. At [61] his Honour continued:
In the absence of Mr Anderson being called to give evidence about the reasons for issuing the summons to the accused, a reasonable inference based on his failure to record the reasons for issuing the summons is he failed to consider the reasons for issuing the summons to the accused. In the circumstances he could not have been satisfied that it was reasonable in all the circumstances to issue the summons.
66 At [64] his Honour continued:
It follows from the above that, on the evidence before the court, I am satisfied on the balance of probabilities that Mr Anderson could not have been satisfied that it was reasonable in all the circumstances to issue the summons to the accused. No one could be so satisfied without having had due regard to the reasons for issuing the summons and the matters about which the accused was to be questioned.
67 At [65] his Honour accepted that s 28(8) (in the form which it then took) provided that failure to record the reasons for the issue of the summons did not affect its validity. Thus it seems that Southwood J held that the summons was invalid because his Honour was satisfied, on the balance of probabilities, that the examiner "… could not have been satisfied that it was reasonable in all the circumstances to issue the summons …". This conclusion was based upon the inference that the examiner had not " … had due regard to the reasons for issuing the summons and the matters about which the accused was to be questioned." This inference, in turn, was based upon the perceived inadequacy of the reasons. His Honour did not find that there was insufficient evidence to establish that it was reasonable to issue the summons. His Honour rather inferred, in the absence of adequate reasons, that the examiner had not considered the question.
68 The Crown appealed against the decision that the summons was invalid. The grounds argued on appeal were that:
(2) His Honour erred in finding invalid the summons issued pursuant to s 28 of the Australian Crime Commission Act 2002 (Cth) (the 'Act') by Australian Crime Commission Examiner Anderson to the respondent dated 12 February 2009 in so far as he concluded he was "[64 …satisfied on the balance of probabilities that Mr Anderson could not have been satisfied (within the meaning of s 28(1A) of the Act)] that it was reasonable in all the circumstances to issue the summons to the accused" in circumstances where:
a The Examiner's reasons recited the required satisfaction under s 28(1A) of the Act and there was no suggestion that statement was made in bad faith;
b Section 28(1A) of the Act does not comprise a jurisdictional fact such that on a collateral challenge to the validity of the summons it is a matter for the court itself to be satisfied that the issue of the summons was "reasonable in all the circumstances"; and
c In the alternative, the Examiner's reasons incorporated by reference "a statement of facts and circumstances" and "legal submissions" neither of which were obtained by the respondent from the Australian Crime Commission, nor tendered on the voir dire. Consequently his Honour Justice Southwood did not have the entirety of the reasons before him and thus mistook the facts or failed to take into account a material consideration in the House v R (1933) 48 CLR 565 sense, and was unable to conclude that the Examiner "could not have been satisfied"; and
(3) The proceedings leading to the judgment appealed from miscarried because the respondent did not identify to the Court, sufficiently or at all, that he was then arguing that an element of the offence charged was that there was a valid summons pursuant to which the respondent appeared before the Examiner; accordingly his Honour:
(a) Applied the wrong procedures;
(b) Denied the Appellant procedural fairness;
(c) Failed to rule on the issue said to have been raised by the respondent."
69 As to Ground 2 the Court of Criminal Appeal concluded at [28] that "… section 28(1A) of the Act does not comprise a jurisdictional fact such that, on a collateral challenge to the validity of the summons, it is a matter for the Court itself to be satisfied that the issue of the summons was reasonable in all the circumstances". At [29] the Court formulated the relevant question as being "… whether the examiner could have attained that satisfaction reasonably in the sense explained in numerous authorities …". At [31] after reference to various High Court decisions, the Court observed:
If there is simply no evidence at all upon which the decision could have been formed by a reasonable person who correctly understood the law, then similarly the basis for the exercise of the power is absent.
70 At [32] the Court concluded that Southwood J had not treated compliance with s28(1A) as being a jurisdictional fact about which he had to be satisfied. The Court considered that his Honour had rather held that "… the record of reasons for the issue of the summons in this case was not a record of reasons at all". At [34] the Court observed that:
His Honour's approach was to consider the reasons and to decide whether those reasons showed that there were facts upon which the examiner could be satisfied that it was reasonable to issue the summons. That approach is in accordance with the relevant authorities.
71 The Court of Criminal Appeal then considered the submission that the statement of facts and legal submissions had been incorporated into the reasons by reference, referring to the decision of Foster J at first instance in the present case. The Court considered that although the reasons suggested that those documents provided facts which the examiner had considered, "… nowhere does the reasons document itself explain the relevance of any of that material, or set out any reasoning process by reference to that material." The Court then suggested that in any event it was for the Crown to lead evidence of the content of those other documents, particularly as they had not been provided in answer to a subpoena for production of the reasons. The Court concluded that inferences could be drawn from the Crown's failure to put the documents into evidence.
72 Finally, the Court dealt with a submission that the failure to provide reasons did not affect the validity of the summons because of the operation of s 28(8). This submission apparently reflected the view expressed by Jagot J in SS (supra) at [92] where her Honour said:
If the failure to make a record cannot affect the validity of the summons then it necessarily follows that the deficiency of such a record also cannot affect the validity of the summons. To conclude otherwise would be contrary to the express will of parliament embodied in s 28(8) of the ACC Act. Accordingly, in so far as SS's submissions under these grounds related to the alleged deficiency of the reasons per se as a source of invalidity of the summons, the submissions must be rejected.
73 At [45] the Court of Criminal Appeal referred to the above passage and, at [46], observed:
The difficulty with this argument is that it would negate any power by the Court to consider whether in fact the examiner had considered the facts and the law correctly in accordance with the decisions of the High Court to which we have earlier referred. All that section 28(8) provides is that that the failure to properly record the reasons is not in itself sufficient to enable a finding to be made that the summons was invalid. But once the Court is called upon to find as a fact whether or not the examiner did have the relevant satisfaction, that is a different question. In the circumstances of this case, the accused did all that could be reasonably expected of him to put before the Court such material as disclosed the reasons of the examiner. Those reasons were defective and in those circumstances, it is our opinion that the learned Judge's conclusion was correct. Furthermore, we reject the view of Jagot J that drawing a Jones v Dunkel inference would be converting mere "conjecture and suspicion into inference".
74 Ground 3 is not strictly relevant to the matter with which we are presently concerned, but it explains the context in which the case was decided, both at first instance and on appeal. It seems that on appeal, the Crown submitted that the issues before Southwood J had been:
whether the attempt to compel LB to swear or affirm was unlawful given the alleged absence of a valid summons;
if so, then, whether there was a discretion to exclude evidence that LB had been required to swear or affirm and had refused so to do; and
whether the discretion should be exercised.
75 It seems that those issues were raised at first instance, but LB submitted that he had also asserted that existence of a valid summons was an element of the offence charged and therefore had to be proven. At [58] the Court of Criminal Appeal observed that a permanent stay was appropriate because "… it appears that the case is hopeless because the Crown cannot bring any evidence to prove its case". Such absent evidence was as to the validity of the summons, the absence being the result of the conclusion that such evidence as there was pointed to invalidity rather than validity. Neither at first instance nor on appeal was the matter disposed of by way of an exercise of the discretion to exclude evidence.
76 It is no part of our duty to consider the correctness or otherwise of the ultimate decision reached by Southwood J or of that of the Court of Criminal Appeal. However, to the extent that the decision of the Court of Criminal Appeal informs the proper construction of s 28, we are obliged to pay due deference to it. In order to determine whether it informs such construction, we must understand the context in which the decision was made. No doubt at least partly because of our lack of understanding of criminal practice in the Northern Territory, it is a little difficult to understand that context. The reference to s 26L in the reasons of the Court of Criminal Appeal suggests that Southwood J considered either a question relating to the admissibility of evidence or a question of law affecting the conduct of the trial. An application for the exclusion of evidence might well be raised and determined pursuant to that section. That procedure would also be appropriate for consideration of a submission that on the available evidence, no jury, properly instructed, could be satisfied to the requisite standard as to a particular element of the offence. However Southwood J concluded that he was satisfied on the balance of probabilities that the examiner did not have the requisite degree of satisfaction as to the reasonableness of issuing the summons.
77 As we understand criminal practice, factual questions are for the jury, save where it is submitted that there is, as a matter of law, no evidence upon which the jury, properly directed, could be satisfied beyond all reasonable doubt as to an essential element of the offence charged. Consideration of that question does not require that the trial Judge be satisfied on the balance of probabilities as to anything. Questions of admissibility, including the exercise of a discretion to exclude evidence, may raise questions of fact to be determined by the trial judge on the civil standard of proof, but that seems not to have been the basis upon which LB was resolved, either at first instance or on appeal.
78 In any event, there are at least two clear differences between the context in which s 28 was considered in LB and that of the present case. First, the decision in LB concerning the validity of the summons arose in circumstances in which the Crown was obliged to prove such validity beyond reasonable doubt, assuming that the question was properly raised by the defence. In the present case, it was for the appellant to satisfy the primary Judge that the summons was invalid, necessarily assuming the onus of demonstrating that the examiner had not considered the question of reasonableness. The second, and associated difference is that in the present case, redacted versions of the Statement and the Submissions were provided to the appellant who chose not to put them into evidence. In LB the court drew inferences adverse to the Crown from its failure to tender similar documents. In this case, as the appellant bore the onus of proof and had access to those documents, inferences adverse to the appellant may be drawn from his failure to tender them.
79 We do not advance these differences as a merely colourable basis for distinguishing the decision in LB from the present case so as to avoid paying due deference to that decision. We accept that our decision, in some respects, is at odds with the decision in LB. The difference appears to arise substantially from our view that the reasons required by s 28(1A) are not for the purpose of informing either a court reviewing the decision to issue a summons or the person summoned. That view leads us to conclude that much less is required to satisfy the requirements of s 28 than was demanded by Southwood J and the Court of Criminal Appeal. We also have great difficulty in seeing how, in the present case, the reasons can be assessed without reference to the Statement and the Submissions. Further, we do not accept that one may infer, in this case, from any inadequacy of the reasons, that the Examiner did not consider the question of reasonableness. Finally, we respectfully adopt the general observations made by Jagot J in SS at [93]-[97].
80 Although little has been said about the subject, either in this case or in LB, we should say something about the presumption of regularity, if only because our having been referred to LB prompts us so to do. In The King v Brewer (1942) 66 CLR 535, a relevant issue in a criminal prosecution was whether or not one Ritchie had been appointed to a particular public office. Latham CJ and McTiernan J held, at 548, that:
Acting in a public office is evidence of due appointment to that office, not only in civil proceedings but also in a criminal case … . The presumption that his appointment was duly made is not met by any rebutting evidence … . The conclusion, therefore, is that Ritchie was appointed to serve in the Canteens Service and that his service therein was service under the Crown.
81 The presumption is not limited to conclusions about the holding of public office or the performance of public duties. See Wright v Bastin (No 2) [1979] VR 329 at 339. However the presumption of regularity is generally thought to have been limited in its operation by the decision of the Judicial Committee of the Privy Council in Dillon v The Queen [1982] AC 484. In that case a police officer was charged with the offence of negligently permitting prisoners to escape from lawful custody, a necessary element of the offence being that the prisoners were in a lawful custody. The Crown submitted that it did not have to prove that fact as it could rely upon the presumption of regularity. In other words, it argued that the fact that the prisoners were in custody founded a presumption that they were in lawful custody. Of this argument their Lordships said at 487:
Their Lordships are of the opinion that it was essential for the Crown to establish that the arrest and detention were lawful and that the omission to do so was fatal to the conviction of the defendant … . The lawfulness of the detention was a necessary precondition for the offence of permitting escape, and it is well establish that the courts will not presume the existence of facts which are central to an offence … .
…
On the other hand, there is not likely to be any difficulty for the Crown in proving the lawfulness of the detention, when it exists. Production of the warrant for arrest, or of a magistrate's order for detention, or of a suitable certified copy, is normally all that is required, and it should be in the possession of the person in charge of the prison or lock-up.
82 Although the Judicial Committee was not willing to infer regularity from the fact of imprisonment, their Lordships did not hold that, in general, it was necessary to prove the validity of any instrument which authorized such detention. Thus the case was quite unlike that with which we are presently concerned. The presumption has been examined in a number of Victorian cases concerning breathalyser legislation, the most recent of which appears to be Impagnatiello v Campbell (2003) 6 VR 416. The offence required that the prosecution prove that a sample of breath furnished for examination by a breath analyzing instrument recorded, indicated or showed the presence of more than the prescribed concentration of alcohol in the blood. The term "breath analysing instrument" was defined in s 3 of the Act. The question was whether the instrument used for performing the analysis was authorized by the Act. The legislation provided numerous ways in which the prosecutor might have proven that fact, none of which had been adopted. It was submitted that, in conducting the breath test, the relevant police officer was performing a public duty, and that it could therefore be presumed that in so doing he had complied with all statutory conditions for such performance. At [25], Eames JA said:
In the present case, even assuming that the respondent was indeed performing a public duty, rather than exercising a mere discretion, there was nothing in the circumstances of the performance of that duty that would give rise to a presumption that he would comply with the condition that he used a machine which had the appropriate identification under s 3. This was not, therefore a situation such as Lush J described, where "the mind may be satisfied of the likelihood of correct observance of [the Act] and of the unlikelihood of the lack of observance of its conditions".
83 At [26] his Honour continued:
As those cases demonstrate there can be a place for the operation of the presumption in a criminal case. In my opinion, however, there is direct authority against the operation of the presumption in proof of an element such as we are concerned with in this case … .
84 The decision in Dillon was referred to as supporting this position. Neither Dillon nor Impagnatiello necessarily supports the proposition that even in a criminal prosecution, the validity of a warrant or summons cannot be proven by reliance upon the presumption of regularity. Both cases seem to accept that an element of an offence may be proven by producing relevant documentary evidence and, presumably, assuming the regularity of its genesis. That is not to say that such regularity may not be put in issue. Whatever may have been the case in LB, we do not accept that the established facts in this case lead to the conclusion that the Examiner was not satisfied as to the reasonableness of issuing the summons.