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:-