Llewellyn & Anor v Finn & Anor [1994] NTSC 80 | Case summary

Llewellyn & Anor v Finn & Anor [1994] NTSC 80 | Case summary | Zoe

established by the Justices Act has jurisdiction to set aside any summons issued pursuant to s23 of the Justices Act. 2. That the summons dated 5 July 1994, addressed to the first plaintiff and the summons dated 11 July 1994, addressed to the second plaintiff be set aside. 3. That time for service and filing of appearances be abridged. 4. Such further and other orders as the Court deems fit. 2. The third item was dealt with by consent during the course of the hearing and needs no further consideration. In so far as the declaratory relief is sought, the issue is judiciable and it is an appropriate matter to be dealt with by way of declaration. This Court is told that this is in the nature of a test case, there having been a number of summons of the like under consideration here issued in recent times. 3. The matter arises in this way: it is alleged by the plaintiff by way of complaint under the Justices Act that on 13 May 1994 the second defendant, Andrew Collins, drank liquor, namely beer in a public place, namely the Todd River, being within two kilometres of licensed premises, namely The Todd Tavern. Such premises were licensed under Part 3 of the Liquor Act and the public place was not the subject of an exemption at that time, all of that contrary to s45D of the Summary Offences Act. 4. The first defendant, a Justice of the Peace or clerk of the Court of Summary Jurisdiction - the position is not clear but it is in any event immaterial - on 11 July 1994, pursuant to s23 of the Justices Act issued a summons directed to the Commissioner of Police of the Northern Territory in the prescribed form requiring him to appear before the Court of Summary Jurisdiction that day and to produce the following: (1) Copy of the original statements made by the police officer who first spoke to Mr Collins at about 1720 hours on 13 May 1994. (2) Copy of the notes made by the police officer who spoke to Mr Collins at about 1720 hours on 13 May 1994. (3) Copy of the original statement made by any other police officer who was present when Mr Collins was spoken to at about 1720 hours on 13 May 1994. 5. On 12 July 1994 a learned stipendiary magistrate, Ms Deland, entertained argument as to whether she had jurisdiction to set the summons aside, noting what she considered to be conflicting authorities and, expressing the view that a different decision on the same question might be made by different magistrates, she suggested that it would be desirable that the issue be brought before this Court. 6. It must have been then considered that if that was done it may render a quicker and less costly result than proceeding by way of making a decision and having it reviewed. That may be so, but this Court is always interested to consider and take into account the opinions of magistrates and it ought not to be thought that the procedure adopted here is necessarily the best in the interest of justice. JURISDICTION TO SET ASIDE THE SUMMONS 7. The Justices Act of the Territory was modelled on legislation of South Australia and decisions of the courts of that State on that legislation have always been given due deference and regarded as being persuasive authority. A critical distinction must be made upon consideration of the first issue going to jurisdiction. Here the act in question was that of a Justice or clerk, not the Court of Summary Jurisdiction. Discussion about the inherent or implied powers of such a court are not to the point. As to those powers see, for instance, Grassby v The Queen [1989] HCA 45; (1989) 87 ALR 618, especially Dawson J at 627 and 628. 8. Section 23 is as follows: 23. "SUMMONS TO WITNESS If a Justice or the clerk is satisfied that any person is likely to give material evidence or to have in his possession or power any article (which term includes any document, writing, or thing) required for the purposes of evidence upon behalf of either party to any information or complaint, the Justice or clerk may issue a summons to the person requiring him to appear, at a time and place mentioned in the summons, before such Justices as shall then

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be there, to testify what he knows concerning the matter of the information or complaint, or to produce the article, or to testify and produce as aforesaid (as the case may be)." 9. The position is now different in South Australia, given that it is the Magistrate's Court which issues subpoenas pursuant to section 20 of the Magistrate Court's Act. 10. The question in this case is as to the jurisdiction to set aside the act of a separate and distinct functionary, a Justice of the Peace or the clerk. Though in most cases the person issuing a summons may be closely connected with the court, that need not always be the case. The obligation on such a person to be satisfied that the summons sought is for a prescribed purpose is separate from and independent of the court. The issue is not related to the power of that court to regulate its own affairs. It is as to the power of that court to supervise the acts of the justice or the clerk. In South Australia the question was decided against the then Court of Summary Jurisdiction by Walters J in Holland v Sammon (1972) 4 SASR 1. 11. The jurisdictional question was not questioned by King CJ, White and Millhouse JJ in Hunt v Wark and Ors (1985) 40 SASR 489. In this court an application to set aside a similar summons came before O'Leary J in R v Robertson and Anor; Ex parte McAulay (1983) 21 NTR 11. No question of jurisdiction was raised amongst the many issues canvassed in that case. Reference might also be made to Botany Bay Instrumentation and Control Pty Ltd v Stewart (1984) 3 NSWLR 98, there being no relevant distinction to be made between a court and any other body over which a superior court exercises supervisory powers. 12. A like question arose, amongst many others, in Limbo v Little (1989) 65 NTR 19. The appellant in that case had complained that the clerk of the court at Alice Springs had refused to issue a summons. He went before a magistrate who held that he had no power over the clerk and the Court of Appeal, comprised of Kearney, Rice and Martin JJ, upheld his decision:"Remedies might be available in the Supreme Court, ... but a magistrate has no such power" (ibid, at 35). 13. On the basis of those authorities, the declaration sought is refused. The Court of Summary Jurisdiction, established by the Justices Act, has no jurisdiction to set aside any summons issued pursuant to s23 of that Act. SHOULD THE SUMMONS BE SET ASIDE 14. It is now necessary to refer to the application to set the summons aside. A Court of Summary Jurisdiction may excuse a person from failing to comply with a summons (s24), but that is a different matter altogether. I note the particularity with which the documents sought by the summons is described. A recital of the facts said to constitute the offence, and other material perhaps relevant to sentence, are contained in a document placed before the Court by consent in the form of a precis prepared by the police. It is, I understand, the practice for such a document to be provided to an accused in a summary prosecution in that Court. It reads as follows: "At about 1720 hours on Friday, 13 May 1994, the defendant was standing in the Todd River with some friends. He was adjacent the rear of the TIO building and was (sic) beer and wine from aluminium cans. A police patrol observed the defendant drinking and spoke to him about the matter. When asked what he was doing, he stated, "No, I just drinking with them mob". When asked if he was aware that it was an offence he stated, "Yeah". At the time of the commission of the above offence, the Todd River was a public place. The nearest liquor outlet was the Todd Tavern, which was situated about 150 metres from where the defendant was apprehended. The defendant had been cautioned on two other occasions the same afternoon in the same area for the same offence." 15. The application to set the summons aside is grounded in claims that the documents sought are not sufficiently particularised, and that in any event they are not relevant to any issue likely to arise in the course of the hearing. The description of the documents is to be compared with that under consideration in R v Robertson and Anor; Ex parte McAulay (op cit, at 13) of that report. O'Leary J at 16 adopted what was said in Commissioner for Railways v Small [1938] NSWStRp 29; (1938) 38 SR(NSW) 564 at 573, 574, based upon what Lord Denning said in the In re Westinghouse Litigation (1977) 3 WLR 430 at 438: "(Reasonable particularity requires that the description of the documents to be produced) should be sufficiently

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specific to enable the person to put his hand on the documents or the file without himself having to make a random search

in short, to know specifically what to look for (...) The person ought not to be required to chase through masses of documents to see whether this or that may or may not relate to the dispute".

The description of the document sought in this case is undoubtedly sufficient to meet that test. It is not of the kind referred to in Robertson's case as saying to the Commissioner, "We want everything you have got", at 17 of that report. Nor does the summons amount to an attempt to gain discovery, as to which see for example Sobh V Police Force of Victoria [1994] VicRp 2; (1994) 1 VR 41.
During the course of argument, counsel for the accused said that the purpose of seeking the documents was to ascertain whether: (1) the accused's confession that he was drinking, an element of the offence, was admissible; (2) what, if anything, was said between the police and the accused other than that contained in the precis; (3) there is evidence other than that disclosed in the precis, upon which the police propose to rely to prove the case.
It was put, "What is the case the defendant must answer?". For example, is there to be exhibited cans containing liquor, was any liquor tested to ascertain whether it was liquor within the meaning of the Act; (which is defined as a beverage that contains more than 1.15 per cent by volume of ethyl alcohol)?
Counsel also indicated that his instructions were contrary to the facts alleged in the precis, but not in what manner. In R v Charlton [1972] VicRp 90; (1972) VR 758, a decision of the Full Court of the Supreme Court of Victoria, it was affirmed at p761 that an accused person has no legal right to production of all statements made by all witnesses to be called by the Crown. But that where it is shown in any particular case if the interests of justice require it, the Court may well order production of a particular statement or statements.
Similarly in Hunt v Wark and Ors (1985) 40 SASR 489 in the Full Court of the Supreme Court of South Australia, King CJ with whom White and Millhouse JJ agreed, drew attention to the breadth of the expression, "Required for the purposes of evidence upon behalf of either party", contained in s23: "It is not necessary to construe those words with undue strictness so as to refer only to documents which are admissible evidence. The words are wide enough to include documents reasonably needed for the cross-examination of the witness, such as statements by the witness with respect to matters in issue in the case, whether or not they would ultimately be used in evidence to contradict the witness." (ibid, at 493).
They there referred to Maddison v Goldrick (1976) 1 NSWLR 651. Those cases make it plain that there is an onus on an accused seeking production and inspection of witness statements to show that there is an issue or issues in the case to which the document or documents relate, otherwise the accused is simply embarking on a fishing expedition and that is not permissible. In that regard see the cases referred to by O'Leary J in R v Robertson (supra) referred to above and at 18.
The position was put more firmly in the Court of Criminal Appeal of New South Wales by Hunt J in R v Saleam (1989) 16 NSWLR 14. At 18 his Honour said: "(W)hen a trial judge is faced with a subpoena (seeking production of every document relating to an investigation) he should require counsel for the accused to identify expressly and with precision the legitimate forensic purpose for which he seeks access to the documents, and the judge should refuse access to the documents until such an identification has been made."
Carruthers, Grove JJ agreed. Now, that is not precisely the case here. The scope of the summons to produce the documents is not broad; it is quite particular, but nevertheless a purpose which falls within the cope of s23 must be identified. If there is no such purpose then the summons is an abuse of process and may be set aside prior to production of the documents in the court.
The issue must be made plain by reference to instructions received on the point and disclosed openly to the Justice or clerk asked to issue the summons, the reason being recorded, or to the Court of Summary Jurisdiction, if a summons is issued a document produced to it and inspection sought on behalf of the accused. Gallop J put it in R v Cahill (1985) 61 ACTR 7 at 11: "It is now well established by authority that a magistrate has a discretion whether to grant access to a document

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produced to him on summons. Such discretion is judicial, to be exercised in the interests of the fair conduct of the hearing with due regard to claims such as legal professional privilege and confidentiality." 25. See also the cases there cited by his Honour. Other considerations may arise, such as a claim for public interest immunity. Alister and Ors v The Queen (1984) 154 CLR 404. 26. It is not always necessary that the matter be brought to this Court at first instance. Claims to be excused from obedience to a proper summons should be put to the Court of Summary Jurisdiction (s24). 27. It is manifest from what counsel told this Court that there is no definite issue between the accused and the complainant. The purpose in seeking to have the specified documents produced and, presumably, made available for inspection is an attempt to identify whether any relevant issue might arise. In the light of the authorities that is not a legitimate use of the summons. Nor does the accused obtain the right to call for the production of the documents by the summons and to inspect them by simply asserting, as his counsel did, that he disagrees with everything alleged in the precis. That is to say no more than that the complainant will be put to proof and that does not entitle the accused to have the documents. It is an attempt to obtain general discovery. For the background to the common law prohibition on discovery in criminal matters, see the reasons of Brooking J in R v Sobh (supra). 28. The broad sweep of the accused's approach can also be seen from the attempt to raise issues relating to proof that the substance involved was liquor within the meaning of the Liquor Act. The complaint contains an averment to that effect, as permitted by s124A of the Liquor Act, and that is evidence of the fact. Nothing further is required in the prosecution case. The defendant does not press compliance with the summons of 5 July 1994 referred to in the originating motion. It would have been set aside on other grounds. 29. Order that the summons of 11 July addressed to the second plaintiff be set aside. 30. It is noted that the first defendant appeared to submit to the jurisdiction of the Court and such orders as it may make. Brief mention has been made of the responsibilities of a Justice or the clerk upon being requested to issue a summons under s23 of the Justices Act. It is not a routine clerical or administrative task to be undertaken as a matter of course. The Justice or the clerk should satisfy himself or herself that the summons is sought to accomplish a bona fide purpose as defined by that section, and make and keep a record of the reasons given in support of the request that a summons be issued. Those seeking the issue of a summons should be prepared to articulate proper reasons and, to avoid any possibility of misunderstanding by the Justice or clerk or a court reviewing the matter, ought to give reasons in support of the request in writing. 31. It is arguable that the Supreme Court of South Australia has indicated a willingness to adopt a more liberal view of the use of summonses to procure production of statements of proposed witnesses for the prosecution. See Carter v Hayes, a recent unreported judgment of the Full Court comprised of King CJ, Bollen and Mulligan JJ of 30 March 1994. That is a decision arising from the operation of the new Magistrate's Court Act of that State. The Court held that the subpoena there in question was not "fishing". The main question went to whether the documents could be required to be produced to the Court to enable inspection by the defence prior to trial. It does not displace or weaken the effect of the earlier cases based upon legislation akin to that presently in force in the Northern Territory. A summons effectively seeking discovery, or which is designed to drag the lake in the hope of turning up some fish, or fish of a particular kind, remains objectionable.

Llewellyn & Anor v Finn & Anor [1994] NTSC 80; 116 FLR 211; 74 A Crim R 519

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Llewellyn & Anor v Finn & Anor [1994] NTSC 80; 116 FLR 211; 74 A Crim R 519 (2 September 1994)

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Cases Cited (8)