PETERS v ASPLUND & HER HONOUR, MAGISTRATE O'SHANE

Criminal Procedure Act 1986 Evidence Act 1995 LEGISLATION CITED : Local Court Act 1982 Police Act 1998 (SA) Supreme Court Act 1970 Criminal Law Act 1977 (UK)

Peters v Asplund (Hall J, unreported 1 October 2008) Commissioner of Police v Fandakis [2001] NSWSC 586 Harris/D-E Pty Limited v McClelland's Coffee & Tea Pty Limited [1999] NSWSC 36 Buck v Bavonne (1976) 135 CLR 110 CASES CITED : Regina v Connell; ex parte Hetton Bellbird Collieries Limited (1944) 69 CLR 407 Minister for Immigration v Eshetu (1999) 197 CLR 611 Thoo v Professional Services Committee No 446 (2008) 103 ALD 277 Francis v Attorney-General for Queensland [2008] QSC 62 Commissioner of Police v Estate of Russell [200] 55 NSWLR 232

PARTIES : CHARMAINE CHRISTINE PETERS v KENNETH ASPLUND & HER HONOUR, MAGISTRATE O'SHANE

COUNSEL : P: R McIlwaine 1D: A M Gruzman

P: State Crown Solicitors Officer SOLICITORS : 1D: McBride Harle & Martin 2D: State Crown Solicitors Office (submitting appearance)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

CHARMAINE CHRISTINE PETERS v KENNETH ASPLUND & HER HONOUR MAGISTRATE O'SHANE

1 HALL J: The plaintiff, an officer in the service of South Australian Police, seeks declaratory and other relief in relation to the issue of a warrant for her arrest. 2 On 30 September 2008, the second defendant, being the Local Court (her Honour, Magistrate O'Shane), issued the warrant purportedly pursuant to the powers vested in the Court by the provisions of Parts 3 and 4 of the Criminal Procedure Act 1986. 3 On 1 October 2008, the originating summons in these proceedings was filed in this Court by the Crown Solicitor on behalf of the plaintiff. The first defendant to the summons filed a notice of appearance on 1 October 2008. On the return of the summons, an order was made for its service and for service of the affidavits in support on the second defendant by facsimile transmission by 4.00 pm on 1 October 2008. 4 Mr R McIlwaine, solicitor, who appeared on behalf of the plaintiff, sought interim relief by way of a stay order on the warrant pending further orders of the Court. Mr C Blood, solicitor, appeared on behalf of the first defendant. The first defendant opposed the plaintiff's application for the granting of an interim stay order sought. I determined that the summons raised a triable issue and that the balance of convenience favoured the granting of an interim order as sought: Peters v Asplund & Anor (unreported 1 October 2008). 5 An order was accordingly made that the warrant for the plaintiff's arrest issued by the second defendant on 1 October 2008 be stayed pending further order of the Court. 6 In light of the evident urgency and importance of the matter, the proceedings were stood over for hearing on a final basis at 12.00 midday on 2 October 2008. 7 On the re-listing of the proceedings on 2 October, Ms K Edwards, solicitor of the Crown Solicitors Office, appeared on behalf of the second defendant. Ms Edwards sought and obtained leave to file a submitting notice of appearance on behalf of the second defendant. Ms Edwards was then excused from the proceedings. 8 Mr A M Gruzman of counsel appeared, instructed by Mr Blood, on behalf of the first defendant. Mr McIlwaine again appeared on behalf of the plaintiff. 9 On 2 October 2008, Mr McIlwaine sought leave to proceed on an amended summons. The application sought to add an additional claim for relief in the following terms:- "4. A declaration that the subpoena issued on 2 September 2008 and returnable on 30 September 2008 directed to South Australia Police was issued contrary to s.222 of the Criminal Procedure Act." 10 The first defendant opposed the granting of leave. I determined that the plaintiff should be granted leave to make the amendment. Relief was accordingly sought in terms of the amended summons. 11 The plaintiff relied upon and read in support the affidavits of Ms Christina Danbi Choi sworn on 1 October 2008 and the affidavit of Mr Justin Cahill affirmed on 1 October 2008. 12 Mr Gruzman tendered a number of documents on behalf of the first defendant as follows:- Exhibit 1: Tax Invoice of Wise McGrath dated 12 September 2008 Exhibit 2: Subpoena for production and correspondence (provisionally admitted subject to relevance) Exhibit 3: Report of Craig Wright dated 30 September 2008 (provisionally admitted subject to relevance) Exhibit 4: Affidavit of Service Exhibit 5: Extracts of expert report of Brett Goodyer Exhibit 6: Amended Local Court transcript of 30 September 2008 Exhibit 7: Amended Local Court transcript of 1 October 2008

The facts 13 In proceedings against the first defendant in which he is charged with a criminal offence, a subpoena for production of documents was issued on his behalf out of the Local Court on application by his solicitors, McBride Harle & Martin. The subpoena was dated 2 September 2008 and was returnable at the Local Court, Downing Centre, Sydney on 30 September 2008 at 9.30 am. 14 The subpoena was addressed as follows:- "TO: SOUTH AUSTRALIA POLICE Sexual Crime Investigation Branch (Child Exploitation Investigation Section) 30-46 Wright Street Adelaide SOUTH AUSTRALIA, 5000" 15 The schedule to the subpoena was in the following terms:- "SCHEDULE 'Documents' has the meaning in the dictionary, Evidence Act (Cth) and includes any electronically recorded words or images. 1. The following document/s produced by the South Australia Police from the Personal Computer owned by [name omitted by order] a. Image taken by the Police of the Computer Hard Drive owned by either [name omitted by order] or [name omitted by order] and in relation to the charges pursuant to Section 474.27(1) of the Criminal Code Act 1995 in the matter of Police v Kenneth James Asplund." 16 On 17 September 2008, a letter was written on behalf of South Australia Police to the Registrar, Local Court, Downing Centre. Copies were sent to the Commonwealth Director of Public Prosecutions and to the Crown Solicitors Office in South Australia. The letter was entitled "Subpoena - Matter of Kenneth James ASPLUND". 17 That letter was before the Magistrate together with material which was handed up to the Court on behalf of the first defendant, being letters from McBride Harle & Martin to the Commonwealth Director of Public Prosecutions dated 29 September 2008 (Annexures "C" and "D" to the abovementioned affidavit of Christina Danbi Choi). 18 The letter (except for the name of the owner of the computer, which I have deleted) was in the following terms: " Ref: Subpoena - Matter of Kenneth James ASPLUND South Australia Police ('SA Police') is in receipt of a subpoena dated 2nd September 2008, no conduct money pursuant to Section 224 Criminal Procedure [sic] 1986 (NSW) accompanied the subpoena issued on behalf of the defendant Kenneth James ASPLUND by McBride Harle & Martin Solicitors. The return date on the subpoena is 9.30 am the 30th September 2008 at the Local Court, Downing Centre, Sydney NSW. The subpoena requests: 1. The following documents/produced by the South Australia Police ('Police') from the person computer owned by … a. 'Image taken by the Police of the computer hard drive owned by either … or … and in relation to the charge pursuant to Section 474.27(1) of the Criminal Code Act 1995 in the matter of Police v Kenneth James Asplund.' On behalf of the SA Police I advise that:- 1. During the course of the investigation, SA Police forensically imaged the computer owned by … . The imaged data is contained on four (4) Digital Video Discs (DVD). The data contained on the four (4) DVD's is all of the data located on the computer of …. Police are in possession of the four (4) DVD's. 2. In January 2007 Police undertook a key word search of the following terms on the four (4) Digital Video Discs. a. 'Aussie girl' b. 'Homie' c. 'Ken' d. 'Asplin' (the spelling the victim believed 'Asplund' to be) e. 'Asplun' (the spelling the victim believed 'Asplund' to be) f. 'Asplund'. 3. The keyword search did not provide any results of any of these words. 4. On Friday 19th September 2008 SA Police re-examined the contents of the four (4) DVD's. During that search every Microsoft Office document was reviewed. This included .DOC, XLS, .MDB, .PPT .PST files. Also examined was every picture and movie file. A search for any MSN Messenger logs was conducted. They keyword search did not provide any results of any of these words. 5. SA Police have not identified any material contained in the imaged data from … computer hard drive in relation to Section 474.27(1) of the Criminal Code Act 1995. 6. Therefore having regard to the above, there is nil return on the subpoena." 19 On 29 September 2008, the first defendant's solicitors wrote to the South Australia Police, Disclosure & Compliance Section in relation to the subpoena returnable the next day. They advised that they would be attending to call on the subpoena for production. In that respect, the letter stated:- "We will also make an application for costs payable (sic) the Police given that:- 1. An application has not been made by the Police to date to set the subpoena aside; and 2. The non-compliance by the Police with the said subpoena has caused our client to incur unnecessary expense." 20 The letter went on to state that unless the image specified in the subpoena was produced and released to the defence experts, the first defendant would not be in a position to receive proper legal advice for his defence in the proceedings. His solicitors foreshadowed an application for a stay of the criminal proceedings in that event. 21 On 30 September 2008, the proceedings were listed before her Honour Magistrate O'Shane. On that occasion, Ms Choi, solicitor, appeared on behalf of the Director of Public Prosecutions. Ms Choi also announced her appearance on behalf of South Australia Police in respect of the subpoena, although, as Mr Gruzman observed, at a later point in the hearing she said she appeared as amicus curiae for that police service. A record of the proceedings made by Ms Choi was annexed to her affidavit (Annexure E, pp.17 to 19). The first defendant called on the subpoena and her Honour indicated "Nothing produced". The matter was stood down and at 10.10 am, Ms Choi is recorded as stating that a letter had been located and that that letter was before the Court. Magistrate O'Shane at that point noted that there had been "nil return". 22 The complete official transcript of proceedings before the Magistrate is not yet available. However, by special arrangements, pp.1 to 9 inclusive of 30 September 2008 of the official transcript became available. The balance of the record of proceedings is contained in a transcript of the tapes obtained by Mr Cahill, solicitor in the employ of the Crown Solicitors office who caused the tapes to be transcribed by an administrative assistant in the Community Law Team of the Crown Solicitors Office. A copy of the transcript of the tape of the subsequent part of the proceedings before her Honour on 30 September 2008 were annexed as Annexure C to Mr Cahill's affidavit sworn 3 October 2008 and a copy of the transcript prepared at his request before Her Honour on 1 October 2008 is attached to his affidavit as Annexure D. Amended copies of the same were tendered by Mr Gruzman and they became Exhibit 6 and 7. 23 On 30 September 2008, the official transcript (p.4) records Ms Choi as stating to her Honour:- "CHOI: Your Honour, if you read the terms of that subpoena as seen in that letter what they have asked for is the image - not the image itself which consists of four DVDs. It says, 'image taken by the police of the computer hard drive and in relation to the charges' and because of that the South Australian Police have had to re-examine everything on that computer to see how it relates to that charge and found nothing. So if the defence actually require the four DVDs, they should issue another subpoena to that effect. BLOOD: In my submission, it's just a matter of semantics, your Honour and unnecessary delay. As I say, we've clearly identified what we're seeking, the relevance is a matter for the Court, not for the South Australian Police. HER HONOUR: If I understand what Ms Choi is saying, the images taken by the police of the computer hard drove owned by that person or a person in a different name, is contained in four DVDs. In that case, that's what you should ask for. BLOOD: We have in essence asked for that your Honour. As I say -- HER HONOUR: Well they obviously didn't understand your essence, Mr Blood." 24 The transcript of 30 September 2008 records at p.5, Mr Blood stating that he was "… just seeking compliance with those orders, with the subpoena". 25 The hearing was then adjourned whilst another matter was dealt. A little later on the same day, the transcript records:- "HER HONOUR: Ill just mention this matter of Asplund again. Is Mr Blood present? I've actually gone through these papers again and I don't accept what you put to me earlier Ms Choi that the South Australian Police have complied with the subpoena. In fact I have come to the very clear view that they are attempting to resist it in some way, certainly in the most informed way, certainly not in the proper manner and I'm just wondering why I shouldn't issue a warrant. CHOI: Your Honour I have -- HER HONOUR: Bench warrant against - for Senior Sergeant Charlene [sic] Peters, Sergeant Bob Muskey and Detective Sergeant Peter Rodney. CHOI: Your Honour I would object to that tender of the correspondence because that is not the recollection of the South Australian Police and I have an explanation email. HER HONOUR: I'm not looking at the correspondence. CHOI: Yes your Honour. HER HONOUR: I have looked at the material which you handed up to me this morning and which you invited me to read. I have done that again and I have had a look at other documents on this file and I'm just saying why should I not issue a warrant requiring the attendance of these police officers. Would you like to take some time out and try to contact them by phone and -- CHOI: I have specific instructions for these. HER HONOUR: --court's point of view. CHOI: Yes your Honour. The instructions that I have is that first of all the wrong party was issued with the subpoena, the South Australia -- HER HONOUR: After these months you tell me that -- CHOI: No no no. What they have is instructed me -- HER HONOUR: (not transcribable).. it has not been advised to this court and I have sat here on a number of occasions when this matter has come before the court. That has not been advised to me, not even this morning. CHOI: No your Honour that was -- HER HONOUR: I said I would stand it over until this afternoon. CHOI: This subpoena was only issued on 2 September and what the Commissioner Police have done is, even though they received the subpoena, knowing that they hadn't received any conduct money, knowing that it wasn't the Commission [sic] of police that received the subpoena they decided to comply with the subpoena anyway and not ask for it to be struck out. At that point they went through and examined the DVD and tried to comply with the subpoena as bets they could. In relation -- HER HONOUR: -- properly put it to the court this morning, it is not their determination as to what they will or will not supply having gone through the materials, it's not their place to do that. CHOI: Your Honour the people that respond to subpoenas is the Disclosure and Compliance section. They have read the subpoena and they have read it to say that it's the image that relates to the charge. They had thought that that was what the subpoena had said and I would say your Honour if you read the schedule carefully it is quite ambiguous because it says, 'Image taken by the police of the computer hard drive and in relation to the charge'. The Commission has instructed me that if you are not satisfied that that isn't ambiguous and you want them to attend that they will be happy for the matter to be adjourned for hearing and they will be represented on the next. HER HONOUR: Ms Choi, you are certainly to be congratulated for the vigour in which you put your submission, but I can indicate this to you. I have now heard your submission on exactly those lines in those terms on two previous occasions, one being earlier today, and I am indicating to you that the schedule, Schedule 1A, is not in the terms in which you have indicated as stated to you, as conveyed to you by somebody in the compliance section of the South Australian Police. It is not what Schedule 1A says, it's not about images of the child at all, it's image taken by the police of the computer hard drive owned by the named person which is an entirely different matter altogether. I indicated to the parties this morning that I would read through these papers, you can be assured I have read through the papers with care and the question that comes to my mind is, well it's not a question, the firm view that I have formed is there has been a very concerted attempt to avoid compliance with this subpoena. This has now been going on for a while and I am saying all right then, you come along here Ms Peters, Mr Muskey and Mr Rodney and explain yourselves to the court. Is that clear? CHOI: Yes your Honour. HER HONOUR: Would you like to take time out to convey that to them and get some undertaking from them that they'd really prefer not to be arrested and brought over here to answer to the court. CHOI: Would you Honour be -- HER HONOUR: That they would rather in fact respond to the subpoena in an appropriate way. Yes I'll stand it down and you can go and ring them up. CHOI: Would you Honour be minded to set it over for a week so that the Commissioner -- HER HONOUR: No, not at all. I'll wait for you to come back here before 4 o'clock. CHOI: Yes your Honour." 26 Page 8 of the transcript records a further exchange in which Ms Choi advised that the only officer who had delegated authority to respond to the subpoena was the plaintiff. Ms Choi stated:- "I am now instructed that the Commissioner wishes to be heard and represented and for the matter to go over for a hearing." 27 The transcript then records:- "HER HONOUR: Thank you. How long is it indicated we need for such a hearing? CHOI: It's a matter for the court, your Honour. HER HNOUR: No it's not. CHOI: They have instructed me that they will instruct somebody in New South Wales, or someone from the Attorney Generals in South Australia available to attend. HER HONOUR: How long do you estimate a hearing on the issue .. (not transcribable).. might take. BLOOD: Well it may only be a matter of hours your Honour, but I can't see at this stage that the prosecution has filed an application to have this ..(not transcribable).. signed. I'm not certain what the argument would be. HER HONOUR: That is actually the case isn't it? That's exactly the problem. As I said at the outset of my comments this afternoon, whatever response has been made is most informal indeed, improper. You can go back and have further conversations ma'am. I'm not letting this matter leave my bench before 4 o'clock this afternoon, until I get something that's more acceptable to the court in terms of response from the South Australian Police. …" 28 A little later (transcript, p.9), her Honour is recorded as stating:- "HER HONOUR: … These are the options, a warrant issues this afternoon or they fax through - somebody gets up some sort of application to set aside the subpoena." 29 When the hearing resumed, Ms Choi handed up an application in which an adjournment of proceedings was sought. A copy of the application was attached to her affidavit as Annexure F (affidavit pp.19 to 21). 30 The unofficial transcript records Ms Choi as referring the learned Magistrate to the provisions of ss.224 and 229 of the Criminal Procedure Act. During the course of submissions, the transcript records:- "MAGISTRATE: Yes, I have already declared a couple of times stating that I was not satisfied that there had been any attempt, first of all, to satisfy that there wasn't a compliance with the subpoena and that there was no attempt made to explain themselves." 31 A little latter, the unofficial transcript records (p.2):- "MAGISTRATE: Alright. So the application is now that the respondent seeks leave to have the matter adjourned to enable the respondent to brief counsel to appear on the matter … CHOI: Yes your Honour … MAGISTRATE: And the application is … it is still not an application to set aside the subpoena .. is it? BLOOD Your Honour I can't ______ any relevant grounds in the application … MAGISTRATE: What is this application? I am not going to adjourn to enable the respondent to brief counsel to appear on the matter. They have to put in … to create an application if they wish to have it set aside, they are not to make the decision themselves that this is a subpoena to be set aside and set it aside themselves with their own permission. Its not their place to do that. It is the Court's function to do that. I mean I've had this kind of problem with State police attempting to somehow a [sic] rather bypass the functions of the Court or to attempt in some way or a [sic] rather to aggregate the functions of the Court. I don't understand that. So what is this application? CHOI: I mean I think the case is this if they were in NSW your Honour I would ask them to come today however this matter cannot be resolved without someone who is … because I'm only appearing amicus on behalf of them and they … MAGISTRATE: Ok this is the situation then … CHOI: If you can … just one week … MAGISTRATE: Ok this is the situation then … this matter has been going on for such a long time and you've … You've just informed me that you appear as amicus why should the Court not simply dismiss the informations? CHOI: The matter has been going on for quite a long time. MAGISTRATE: That's exactly what I just said. CHOI: Yes your Honour but the subpoena was only issued on the 2nd of September for South Australian Police it hasn't been going on for a long time in relation to this hard drive and so they have tried … your Honour, your Honour might not agree that they have complied with the subpoena but they have tried their best to do so despite the fact that the subpoena hasn't complied with the section …" 32 A little later, the transcript records:- MAGISTRATE: They are not willing to assist the Court and … its very clear on the record, I don't wish to canvass that point yet thank you maam and there is no need to ____ about the issue I have made my … the issues very clear and I make them on the basis of having considered the materials before the Court with some very close attention to what is contained in them … umm … CHOI: What .. can I ask your Honour what you have before your Honour because I'm not quite sure what was handed up by my friend. MAGISTRATE: Well he handed up the correspondence, which is dated yesterday's date. CHOI: … your honour … hand up my response to that correspondence your Honour just out of fairness … MAGISTRATE: What did you hand up? CHOI I haven't handed up anything at this point … just to show your Honour that the SA Police have at least … I mean you have before your Honour what the defence say happened between them and the SA Police and I have here what the SA Police say happened between them and the defence. BLOOD: I am going to hand up … those documents … MAGISTRATE: No … actually I don't want anymore documents I am intending to issue a subpoena against Charmaine Peters Snr Sargent [sic] Charmaine Peters. CHOI: A subpoena or warrant your Honour? MAGISTRATE: A warrant. CHOI: ummm .. even though it doesn't comply with s.200 … MAGISTRATE: As you say BLOOD?: Umm .. your Honour I would say that there is no just or reasonable excuse that has been offered for failure to comply … I mean just because the defence though conduct money could be served afterwards is not a just or reasonable excuse .. the .. MAGISTRATE: Sorry … that is not what I have heard here today. There was no excuse. What the SA Police have done is purported to say that they examined these document and they've made a decision that they don't have to produce anything. Now that is not their function as I have said … and made the comment a few times today. A warrant is to issue against .. what's her name (writing) … Snr Sergeant Charmaine Peters … forthwith SA Australian Police disclosure and compliance section .. thank you … And … when are these matters next before the Court?" 33 Her Honour then reserved the question of costs. 34 On 1 October 2008, Mr McIlwaine attended at the Registry of the Downing Centre Local Court to file an application to set aside the warrant issued on 30 September 2008. Mr McIlwaine appeared before her Honour Magistrate O'Shane. On that occasion, the following exchange is recorded in the account set out in Mr Cahill's affidavit sworn on 1 October 2008. "McIlwaine: 'Your Honour, I appear as agent for the South Australian Crown Solicitor on behalf of the applicant'. Her Honour: 'You've made an urgent application?" McIlwaine: 'Yes'. Her Honour: 'This is simply an application to the Court?' McIlwaine: 'Yes'. Her Honour: ' McIlwaine: 'The only orders I seek are that the warrant be stayed so that proper …' Her Honour: 'Can you say that again - a stay of the warrant?' McIlwaine: 'Yes' Her Honour: 'On what basis?' McIlwaine: 'Under section 229, your Honour had no power to issue the warrant.' Her Honour: 'I heard that from Ms Choi, I expected the same argument …' McIlwaine: 'Section 229 …' Her Honour 'You rely on earlier provisions or simply s.229?' McIlwaine: 'Yes, and the Defendant, Ms Peters, is not a person named in the subpoena. Therefore, your Honour has no power to issue the warrant.' Her Honour: 'I'm not … as I said to Ms Choi … to stay the execution of the warrant … If the South Australian Police are not prepared to comply with the warrant (sic) as it was previously drawn, then the next step - the only thing I want from them is an application to set aside the subpoena. They didn't do that. What they put on by fax was an application to adjourn return of service … I want someone to stand up in Court to make an application. That's what I want. It can be sent by fax to the Court. I said the matter would be set down for a hearing. That was the process I suggested yesterday. I don't know if this message was conveyed or received .' McIlwaine: 'Can I make it clear that your Honour has refused the application?' Her Honour: 'At this time, I'm standing it down.' McIlwaine: 'To what time?' Her Honour: 'I want an application to be filed so the matter an [sic] be fully argued before the Court.' McIlwaine: 'What is before the Court is an application to set aside the warrant.' Her Honour: 'I do understand. I'm leaving the warrant on foot.' McIlwaine: 'I press the Court to withdraw the warrant. Does your Honour refuse that application?' Her Honour: 'The South Australian Police have been asked to produce certain material and it has not done so.' McIlwaine: 'Your Honour may know there is some dispute about that …' Her Honour: 'I do know.' McIlwaine: 'I'm confused, is your Honour ordering me to do anything?' Her Honour: 'No, I'm not asking you to do anything.' McIlwaine: 'Thank you your Honour."

Statutory provisions 35 The Criminal Procedure Act, Part 3, entitled Attendance of Witnesses and Production of Evidence in Lower Courts sets out provisions concerning the issue of and compliance with subpoenas. 36 Section 221, Definitions, defines "person named" in a subpoena as meaning "the person to whom the subpoena is addressed". 37 Section 222(1) provides:- "A registrar, if requested to do so by a party to proceedings, is, subject to and in accordance with the rules, to issue to the person named any of the following subpoenas:- (a) a subpoena to give evidence; (b) a subpoena for production; (c) a subpoena both to give evidence and for production." 38 Section 224 prescribes an obligation for the payment or tender of conduct money to the person to whom the subpoena is addressed at the time of service. 39 Section 225(a) provides that the person named is not required to produce any document or thing if:- "(a) It is not specified or sufficiently described in the subpoena …" 40 Section 229 is an important provision in the present proceedings and, accordingly, I set it out in full:-

" 229 Action that may be taken if person does not comply with subpoena (1) A party who requested, or issued, a subpoena may apply to the court for the issue of a warrant under Part 4 for the arrest of the person named if the person named has not complied with the subpoena. (2) The court may issue the warrant if satisfied that:- (a) the person named has not complied with the subpoena, and (b) the requirements of this Part for subpoenas were complied with and no just or reasonable excuse has been offered for the failure to comply. (3) A Magistrate or an authorised officer before whom a person is brought on arrest on a warrant issued under this section may, if bail is not dispensed with or granted, issue a warrant:- (a) committing the person to a correctional centre or other place of security, and (b) ordering the person to be brought before a court at the date, time and place specified in the order. (4) The Magistrate or authorised officer must give notice of the date, time and place set to the party who issued or requested the subpoena." 41 Part 4 of the Criminal Procedure Act is entitled "Warrants". Section 233 provides that that Part applies to warrants issued under Part 3 of the Act. 42 The provisions of Division 2 of Part 4 contain detailed requirements concerning arrest warrants including the form and duration and the procedures that apply after arrest. 43 In the present proceedings, the following issues arise:-

(1) The identity of the person named in the subpoena.

(2) Whether the statutory requirements of s.222(1) of the Criminal Procedure Act in relation to the issue of subpoena were satisfied.

(3) Whether the statutory requirements of s.229(2) of that Act in relation to the issue of warrants were fulfilled.

(4) Whether there was a denial of procedural fairness to the plaintiff prior to the issue of the warrant for her arrest.

The present proceedings 44 It was submitted on behalf of the plaintiff that this Court has the power to make the order sought pursuant to s.69(1) and (3) of the Supreme Court Act 1970. It was further submitted that the subpoena addressed to "South Australia Police" was invalidly issued and that the second defendant in the circumstances of the case had no power to issue the warrant against the plaintiff. In the alternative it was contended that, if the second defendant had such power, then she had denied her procedural fairness and had made errors of law on the face of the record in issuing it. 45 Before the Magistrate, Ms Choi raised as an issue that conduct money had not been paid at the time of service of the subpoena. It appears from the transcript (Exhibit 6, page 1) that Mr Blood was also of the understanding that conduct money had not been tendered. In these proceedings, Exhibit 1 established that an amount of $20 conduct money had been paid. At the hearing before this Court, Mr McIlwaine stated that the plaintiff did not rely upon the issue that had been raised in this respect before the Magistrate. 46 As Mr McIlwaine for the plaintiff submitted that the Local Court is a court of limited jurisdiction and its powers to issue a warrant for the arrest of a person in relation to a subpoena are governed and determined by the provisions of the Criminal Procedure Act. 47 In particular, it was submitted on behalf of the plaintiff:-

• Before the Court could issue a warrant, it was necessary that "the person named" had not complied with the subpoena. It was contended that the steps taken by officers of South Australia Police in relation to it constituted compliance and, in any event, the plaintiff was not "the person named" as it was addressed to "South Australia Police" . As she was not the addressee to the subpoena, she had no obligations in respect of it.

• "South Australia Police" in itself is not "a person" . Under s.4 of the Police Act 1998 (SA) "South Australia Police" is said to consist of:- (a) the Commissioner of Police; and (b) the Deputy Commissioner of Police; and (c) the Assistant Commissioners of Police; and (d) the other officers and members (including community constables) appointed under Part 4.

• On the issue of compliance with the subpoena, there was no evidence before the Court "in proper form, namely, affidavit evidence as to … non-compliance …" .

• That before the Court could act under s.229(1), it was necessary for the party who requested or issued a subpoena to make application to the Court for the issue of a warrant for the arrest of the person named in it in the event of non-compliance. In this respect, it was contended that no application had been made to the Court by the first defendant and, accordingly, the learned Magistrate had no power to issue the warrant. 48 In summary, it was contended for the plaintiff, that the subpoena was not issued in accordance with the provisions of s.222 and, in any event, there had been a failure by the learned Magistrate to comply with the provisions of s.229(1) before the warrant was issued (as to which see discussion below). In those circumstances, it was contended that in issuing it, the Magistrate erred in law and, accordingly, the warrant was invalid and ought be quashed. 49 It was further argued on behalf of the plaintiff that the learned Magistrate had denied her procedural fairness in purportedly issuing the warrant pursuant to s.229 of the Criminal Procedure Act in circumstances in which Ms Choi sought to make available material by way of an "explanation" as well as by the refusal of the application for an adjournment of proceedings before any warrant issued. 50 Mr Gruzman's submissions were largely focused upon the subpoena itself as distinct from the warrant. The terms of the schedule to the subpoena he contended were clear and required a detailed search of the image. In that respect, he sought to rely upon the report of Mr Goodyer. Mr McIlwaine objected to the report on the ground of relevance, it not having been before the learned Magistrate. I do not consider the admitted portions of the report are relevant to the issues arising on the amended summons being the issues which I have earlier identified. Furthermore, there had been no report of the kind drawn to the attention of any relevant officer in South Australia Police with a request that consideration be given to it. Nor had any such report been produced to or tendered before the Magistrate. There, in other words, was no evidence before the Local Court that the search of the image by police that had been conducted by them was deficient. 51 Mr Gruzman also sought to argue that the subpoena had been sufficiently addressed to "South Australia Police". For reasons expressed elsewhere in this judgment, I do not accept the submission. Mr Gruzman also sought to argue that the plaintiff had been given responsibility to ensure compliance with the subpoena. Whatever departmental allocation of duties and functions may have been made with respect to the subpoena, the essential point is that the plaintiff had not by the terms of the subpoena been made subject to any statutory responsibility under the Criminal Procedure Act to comply with its terms as she was not the "person named" in it as I have earlier observed. 52 Mr Gruzman drew attention to Ms Choi's statement recorded in the transcript (Exhibit 6, page 1) "… the requirements of this Part for subpoenas were complied with and no just or reasonable excuse had been offered for the failure to comply …" as amounting to a concession. I do not accept that it should be so read. It is clear from Ms Choi's submissions that she was contending that there had been compliance but that even if that were not so:- "They [South Australia Police Officers] have tried their best to do so despite the fact that the subpoena hasn't complied …" 53 Earlier, Ms Choi told the Magistrate:- "… It says, 'Image taken by the police of the computer hard drive and in relation to the charges' and because of that the South Australian Police have had to re-examine everything on that computer to see how it relates to that charge and found nothing …" (transcript, 30 September, at p.4) 54 It is clear that when Ms Choi's abovementioned statement is read in context that her instructions were, in effect, that every reasonable attempt had been made to determine if there was an image that fell within the subpoena and none had been found and that there had therefore been compliance. If it was still contended that there had not been, then, in effect, the plaintiff's position was that it would still have to be established that, notwithstanding the attempts made, no just or reasonable excuse had been offered before a warrant could issue.

Consideration 55 The Local Court is a court created by statute: Local Courts Act 1982. Its jurisdiction is solely that conferred by that or other statutes: see Commissioner of Police v Fandakis [2001] NSWSC 586, per Simpson J. 56 A subpoena properly issued under the provisions of the Criminal Procedure Act is a written order requiring the person named in it to comply with the terms of the order. A subpoena, of course, is an important part of the processes of the Local Court and it, in conjunction with the Criminal Procedure Act, imposes an obligation of compliance upon the person to whom it is addressed. A failure to comply with a subpoena may, in accordance with the Act, lead to the arrest of the person named in it. The power to order such drastic action is, however, conditioned by the requirements of s.229(1) and (2). 57 The validity of a warrant issued under Part 3 of the Act is, in that respect, dependent, inter alia, upon the Court being "satisfied" of facts and matters as specified in s.229(2)(a) and (b). In relation to arrest warrants issued under the Criminal Law Act 1977 (UK) it has been observed:- "If warrants which are apparently valid are to be taken at their face value and justify the action taken in conformity with them it is necessary that there be strict controls governing the granting and the execution of them. Insofar as warrants may authorise what would otherwise be an unlawful invasion of private rights, there are various safeguards which accompany the granting and execution of them. Whether or not they are granted under statutory provision, the procedures required for the granting of them must be carefully followed." McGrath v Chief Constable of the Royal Ulster Constabulary [2001] 3 WLR 312 per Lord Clyde with whom Lords Steyn, Browne-Wilkinson and Cooke of Thorndon agreed at [18] 58 Similarly, s.229(2) imposes strict controls over the issue of warrants under Part 3 of the Criminal Procedure Act being controls that establish safeguards with respect to the power conferred by its provisions. 59 Section 229(1), sub-titled "Action that may be taken if person does not comply with subpoena" makes reference to "a party who has requested or issued a subpoena may apply to the Court for the issue of a warrant…" and to "the person named". 60 In the present proceedings, the relevant "party" was the first defendant. However, as Mr Gruzman of counsel properly conceded, the first defendant, whilst seeking compliance with the subpoena, at no point in the proceedings made application under s.229(1) for a warrant to issue. Further, as has been noted, the plaintiff was not "the person named" in the subpoena. She, accordingly, was not a person subject to any obligation under the Criminal Procedure Act in relation to it. It is, accordingly, clear that the pre-conditions specified in s.229(1) of the Act for the issue of the arrest warrant had not been satisfied at the time the learned Magistrate, the second defendant, issued it. 61 On that basis, it is clear that the warrant issued against the plaintiff was not issued according to law and, in my opinion, it is a nullity. 62 There is an additional matter arising in terms of s.229(2) which, in my opinion, separately leads to the conclusion that the warrant was invalid. The power of the Local Court under s.229(2) of the Act to issue a warrant is also conditioned by the requirements specified in that provision, namely, that the Court may only issue a warrant "if satisfied' of the matters in sub-paragraphs (a) and (b) of the last-mentioned section, namely, that:- "(a) the person named has not complied with the subpoena; and (b) the requirements of this Part for subpoenas were complied with and no just or reasonable excuse has been offered for the failure to comply." 63 I will deal, firstly, with s.229(2)(b). I will return to the requirement specified in s.229(2)(a) below. 64 In Harris/D-E Pty Limited v McClelland's Coffee & Tea Pty Limited [1999] NSWSC 36, Hodgson CJ in Eq (as his Honour then was) in relation to an application by the plaintiff in that case to issue a warrant under the relevant Supreme Court Rules and/or s.194(1)(b) of the Evidence Act 1995 for the purposes of bringing a witness to court to give evidence referred to the onus of establishing the requirements under the latter provision, namely:- "(b) If it is proved that the non-appearance is without just cause or reasonable excuse and that the witness will probably be able to give relevant evidence in the proceedings, issue a warrant to bring the witness before the court to give the evidence." 65 Hodgson CJ in Eq observed at [33] that he was not prepared to act in the case without proof of the requirement laid down by s.194. Turning to the terms of the section, his Honour stated at [34]:- "… it is clear that the onus is squarely on the plaintiff to satisfy me that the witness has no just cause or reasonable excuse …" 66 Whilst s.229 of the Criminal Procedure Act does not contain the phrase "if it is proved that the non-appearance …", it is clear that a party applying under s.229(1) to the Court for the issue of a warrant does have the onus of satisfying the Court that the statutory conditions in s.229 have been fulfilled, namely, that the requirements of Part 3 of the Act had been complied with, that there has been a failure to comply with the subpoena and that no just or reasonable excuse has been offered for the failure to comply. 67 In the present case, as the first defendant made no application for a warrant to issue, he did not undertake any onus. There was no evidence formally tendered to establish that no just cause or reasonable excuse had been offered for the asserted failure to comply and the documents handed to the Magistrate did not, in my opinion, establish that important requirement. 68 In order for a court to be "satisfied" under s.229(2), it is required to act judicially. In that respect, it is sufficient to refer to dicta of Gibbs J (as his Honour then was) in Buck v Bavonne (1976) 135 CLR 110 at 118 to 119 as follows:- "… it is not uncommon for statutes to provide that a board or other authority shall or may take certain action if it is satisfied of the existence of certain matters specified in the statute. Whether the decision of the authority under such a statute can be effectively reviewed by the courts will often largely depend on the nature of the matters of which the authority is required to be satisfied . In all such cases, the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, when a matter of which the authority is required to be satisfied is a matter of opinion or policy or taste, it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. In such cases the authority will be left with a very wide discretion which cannot be effectively reviewed by the courts. Hughes & Vale Pty Limited v New South Wales [No 2] itself was a case of that kind. Where the authorities require to be satisfied of the existence of particular matters of objective fact, the position may be very different. It may then be possible to show clearly not only that the material facts existed but that an authority acting in accordance with its duty could have reached no other conclusion than that they existed. Under s.18(2) of the Act, the matters of which the Board must be satisfied before an applicant will be entitled to registration are clearly defined, and they do not permit the Board to exercise any judgment as to the fitness of the applicant or to apply its own notions of policy in reaching its decision …" (emphasis added) 69 In Regina v Connell; ex parte Hetton Bellbird Collieries Limited (1944) 69 CLR 407, Latham CJ observed at 432:- "It should be emphasised that the application of the principle now under discussion does not mean that the court substitutes its opinion for the opinion of the person or authority in question. What the court does do is to inquire whether the opinion required by the relevant legislative provision has really been formed. If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event, the basis for the exercise of power is absent, just as if it was shown that the opinion was arbitrary, capricious, irrational, or not bona fide." 70 See also Minister for Immigration v Eshetu (1999) 197 CLR 611 per Gummow J at 651 to 654. 71 Returning to the facts of the present case, it is clear, in my opinion, that the learned Magistrate at the time of issuing the warrant was not in a position to be "satisfied" of the essential preconditions set out in s.229(2)(a) and (b) of the Act. Firstly, in that respect, as already noted, "the person named" was not the plaintiff. Accordingly, there was no basis for a finding that she had not complied with the subpoena as required by s.229(2)(a). 72 Secondly, the evidence did not establish as a matter of fact that an image as specifically described in the schedule to the subpoena existed but had not been produced. The terms of the subpoena (see paragraph [15] above) called for the "image taken from the computer hard drive owned by … and in relation to the charge pursuant to s.474.27(1) of the Criminal Code 1995". It did not call for an image simpliciter (or for the DVDs) but only to the specified image, inter alia, that related to the charge. The material before the learned Magistrate was to the effect that police stated that they had searched and found no such image. There was no evidence before the Magistrate that the search had been wrongly undertaken or that an image of that description in fact existed. 73 There was, in my opinion, evidence, namely, the letter of 17 September 2008 to the Local Court, capable of constituting a reasonable basis for the "nil return" on the subpoena. When the proceedings on 30 September 2008 reconvened at 2.45 pm, her Honour stated that, having read the material, she had come to a "very clear view" that "they" (a reference to South Australian Police) "are attempting to resist it in some way, certainly in that most informed way, certainly not in the proper manner and I'm just wondering why I shouldn't issue a warrant" (transcript, p.5, lines 38 to 45). It is not clear which police officers were here referred to. The above statement by the Magistrate, suggesting impropriety on behalf of certain police, was, of course, a most serious one and for which there would need to have been cogent evidence. 74 As the extract of the transcript set out in this judgment (at p.11) indicates, the Magistrate stated that she had formed the view "… there has been a very concerted attempt to avoid compliance with the subpoena. This has been going on for a while …". 75 I have closely examined the evidence both as to the proceedings before the Magistrate and in this Court. There is and was no evidence capable of supporting a finding of any impropriety by any officer of the South Australia Police of the kind indicated by the Magistrate. It was argued by Mr McIlwaine in his final submissions to the Court that her Honour's stated belief to the contrary would support a conclusion that, in deciding to issue the warrant, her Honour had referred to an irrelevant and erroneous consideration. 76 It is not necessary for this last-mentioned issue to be determined as, in my opinion, the warrant is invalid on the grounds earlier stated. 77 It is sufficient to observe that the learned Magistrate had a copy of the letter sent by South Australia Police dated 17 September 2008 (Annexure B to Ms Choi's affidavit). That letter represented a response made approximately two weeks after the subpoena was sent and well in advance of the return date of 30 September 2008. The letter noted the requirements of the subpoena and then set out in some detail "advice" on the matters stated in points numbered 1 to 5 of the letter. 78 Whether or not the advice in the letter of 17 September 2008 was itself conclusive evidence of a full and proper search for the image having been made, on its face it did provide a detailed explanation as to the basis upon which the search of the image had been conducted and the basis for the conclusion as to "… nil return on the subpoena". The letter in no way suggested any obfuscation and in the absence of evidence to the contrary should have been accepted as a bona fide explanation of the matters to which it referred. 79 An issue of "… just or reasonable excuse …" in s.229(2)(b) may involve an excuse based on matters of fact and/or it may consist of an "excuse" based on matters of law as, for example, that a subpoena had not been properly issued in accordance with the provisions of Part 3 of the Criminal Procedure Act. In this case, the learned Magistrate did not state any basis or ground for refusing the adjournment sought by Ms Choi on behalf of South Australia Police for the purpose of supporting a contention, if necessary, as to the issue of "just and reasonable excuse". 80 When the proceedings reconvened at 3.00 pm, Ms Choi stated that she had been requested to make an application for the matter to be adjourned so that "the Commissioner" could be represented by counsel and inquired as to whether her Honour would adjourn the matter for a week. Her Honour indicated that she wanted "an appropriate response" or she would issue a warrant. The court adjourned soon thereafter. 81 When the hearing reconvened and Ms Choi handed up the application for the adjournment, a copy of which, as earlier noted, is Annexure F to her affidavit. The "respondent" to the subpoena and the applicant for the adjournment was specified as "South Australia Police". Having read the application, her Honour stated that she would not adjourn the proceedings as had been requested. 82 Mr McIlwaine, in his written submissions, claimed that there had been a denial of procedural fairness. In that respect, he observed that the issue of a warrant pursuant to s.229 involves an exercise of judicial power. He contended that the plaintiff was entitled to an adjournment in circumstances in which there was clearly "a live dispute" as to whether there had been compliance in circumstances in which the image had been searched for with a nil result. He contended that the plaintiff was entitled to be represented by counsel on that issue and, if required, on the issue of "just and reasonable excuse". 83 Mr McIlwaine claimed that insofar as it could be said that the wording of the subpoena left room for doubt as to its meaning and as to what was sought no prejudice would have resulted from an adjournment as no hearing date had been fixed for the hearing of the charge against the first defendant and the first defendant was not in custody. There was, he submitted, no prejudice to any party that could not be remedied by a costs order if the proceedings had been adjourned by the Magistrate for one week as sought by Ms Choi. 84 In Thoo v Professional Services Committee No 446 (2008) 103 ALD 277; [2008] FCA 830, Lindgren J recently reviewed the authorities relating to the question as to whether the refusal of an adjournment constituted denial of procedural fairness. His Honour there stated:- "52. The refusal of an adjournment may amount to a denial of procedural fairness if it is likely to deny a party a reasonable opportunity to present his or her case: Minister for Immigration and Multicultural Affairs v Bhardwha (2002) 209 CLR 597; [2002] HCA 11 at [40] per Gaudron and Gummow JJ; Touma v Saparas [2000] NSWCA 11 at [27]. The procedure that will satisfy the demands of procedural fairness may differ in order 'to meet the particular exigencies of the case': Kioa v West (1985) 159 CLR 550 at 615; 62 ALR 321 at 369-370 per Brennan J. As I stated in Ali v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 41 AAR 410; [2005] FCA 1415 at [27]:- '27. Ultimately, each complaint of a failure to accord procedural fairness by reason of the refusal of an adjournment turns on its own facts. Whether an adjournment should be granted is a matter within the discretion of the trial Judge (or Tribunal), to be resolved according to the overall requirements of justice in the particular circumstances.'" 85 The issue of procedural fairness in relation to an application for the issue of a warrant for a person's arrest was the subject of consideration in Francis v Attorney-General for Queensland [2008] QSC 62, McMurdo J. However, the issue considered in that case arose in an entirely different factual context and is, accordingly, not relevant to the circumstances of the present matter. 86 Section 229(2) of the Criminal Procedure Act, as earlier stated, conditions the exercise of the power, amongst other matters, on there being "no just or reasonable excuse" offered for a failure to comply with a subpoena. Implicit in the section is that a court considering an application for the issue of a warrant will provide the person named in the subpoena with an opportunity to establish a basis for any claim based on "just or reasonable excuse". In other words, the provisions of the section implicitly require such an opportunity to be afforded to the person in question. I am of the opinion that, in the particular circumstances of the present case in which the Magistrate foreshadowed that she was proposing to issue a warrant against the plaintiff (even though she was not the "person named" in the subpoena), it was incumbent upon her Honour to grant the applications made by Ms Choi for an adjournment so that the issue of compliance and, if necessary, that of "just and reasonable excuse" could be argued by counsel. The refusal of the adjournment, in my opinion was, in the circumstances, a breach of the requirements of procedural fairness and effectively, deprived the plaintiff both of the statutory safeguard which s.229(2) establishes and of the opportunity of contesting the issue of the warrant on all grounds available to her. 87 The learned Magistrate, in my opinion, also erred in refusing to examine the email correspondence referred to in the transcript (see p.19 of Ms Choi's affidavit). Procedural fairness, in my opinion, required her Honour to at least accede to Ms Choi's request "to at least consider the email response I received from SAPOL in relation to the defence correspondence". The learned Magistrate effectively refused to look at the document, stating "I don't need to look at any more documents". 88 Finally, I confirm, as earlier indicated, that the subpoena in question was not issued in compliance with the provisions of s.222(1). The addressee of the subpoena for production, "South Australia Police", is not a reference to a legal entity: see s.4 Police Act 1998 and observations of Spigelman CJ in relation to similar provisions in respect of "New South Wales Police Services" in Commissioner of Police v Estate of Russell [2002] 55 NSWLR 232 at [11]. The addressee not being a legal entity, there was a need for it to have been addressed to the proper officer, eg, the Commissioner of Police, in the State in question. 89 For the reasons set out above, the plaintiff is entitled to the relief claimed in the amended summons. Whilst declaratory relief has not been sought in the amended summons with respect to the warrant, I have stated above the bases for my conclusion as to its invalidity. On 8 October 2008, I made orders as set out below and as sought in the summons in its amended form and stated that I would publish the reasons for the orders today, they being the reasons set out in this judgment:-

(1) A declaration that the subpoena issued on 2 September 2008 and returnable on 30 September 2008 directed to South Australia Police was issued contrary to s.222 of the Criminal Procedure Act.

(2) The warrant for the arrest of the plaintiff, Charmaine Peters, issued by the second defendant at the Downing Centre Local Court on 30 September 2008 is quashed. 90 In relation to the question of costs, in the event of any application, I will hear submissions from the parties. **********

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