Criminal law and procedure - Witness summons to produce - Whether DPP has power to act for witness who seeks the cancellation of the summons - Incidental power of DPP - Witness summons - Disclosure of documents - Claim for public interest immunity - Principles to be considered

Director of Public Prosecutions Act 1983 (Cth), s 6(1)(a)

Criminal Procedure Act 2004 (WA)

DPP has no power to act for parties to witness summons

Third-Named Respondent : Mr A J Glynn SC & Mr C J E Eberhardt

Applicant : Commonwealth Director of Public Prosecutions

Air Canada v Secretary of State for Trade [1983] 2 AC 394

Burmah Oil Co Ltd v Bank of England [1979] UKHL 4; [1980] AC 1090

Button v The Queen [2002] WASCA 35; (2002) 25 WAR 382

Carter v Hayes SM (1994) 61 SASR 451

Connell v The Queen (No 6) (1994) 12 WAR 133

Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292

Director of Public Prosecutions v Australian Broadcasting Corporation & Ors (1987) 7 NSWLR 588

Easterday v The Queen [2003] WASCA 69; (2003) 143 A Crim R 154

Ex parte Roddan (1995) 14 WAR 279

Forbes v Australian Federal Police (Commonwealth of Australia) [2004] FCAFC 95

Health Insurance Commission v Freeman (1998) FCR 544

In re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257

Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23

Maddison v Goldrick (1976) 1 NSWLR 651

R v Brown (Winston) (1994) 1 WLR 1599

R v Pearce (1992) 7 WAR 395

R v Stinchcombe (1991) 3 SCR 326

R v Taillefer; R v Duguay [2003] SCC 70

Ran v The Queen (1996) 16 WAR 447

Salmat Document Management Solutions Pty Ltd & Ors v The Queen [2004] WASC 268

Cunliffe v The Commonwealth [1994] HCA 44; (1994) 182 CLR 272

Dunesky & Bay Wool Pty Ltd v Elder [1992] FCA 216; (1992) 35 FCR 429

Freeman v Health Insurance Commission (1997) 78 FCR 91

Grofam v ANZ (1993) 43 FCR 408

Grofam v ANZ [1993] FCA 501; (1993) 45 FCR 445

Leask v The Commonwealth [1996] HCA 29; (1996) 187 CLR 579

1 This matter has become rather messy. Some issues that were live and contentious have fallen away but two issues remain for decision.

2 Consequent upon a decision of Simmonds J: Salmat Document Management Solutions Pty Ltd & Ors v The Queen [2004] WASC 268 there is pending in this Court an indictment charging Salmat with organised fraud and Messrs Hall, Aldridge and Ward with being knowingly concerned in that fraud. The proceedings are being actively case managed. An application by each accused for orders permanently staying the trial has been listed for a five day hearing commencing 24 October 2005.

3 As part of the case preparation leading to that hearing, solicitors for Aldridge and Ward have, by leave, issued witness summonses to the Australian Federal Police ("AFP") and Australia Post ("AP") to produce documents. Pursuant to leave, both Hall and Salmat, as interested parties, have been granted a right to be heard in respect of the summonses.

4 On 27 May 2005, on the first return of subpoenas, Mr Allanson of counsel announced his appearance as follows:

"Your honour, there have been subpoenas issued directed to Australia Post and to the Australian Federal Police and I appear for each of those bodies simply on the return of the subpoenas".

5 The witness summonses were challenged by the AFP and AP. Programming orders were made directing the parties to file submissions and to argue the summonses on 19 August 2005. The written submissions on behalf of the AFP and AP were prepared by the DPP. On the 19 August 2005, Mr Allanson of counsel announced his appearance as follows:

"ALLANSON, MR: If your Honour please, I appear for the Australian Federal Police and Australia Post on the return of the summons issues. Mr Davidson appears with me on those, and to the extent that your Honour may be making any orders in relation to the status of the actual trial rather than simply the summons issues, Mr Davidson appears in relation to those.

McKECHNIE J: Who is actually representing the Commonwealth DPP?

ALLANSON, MR: I'm instructed by the DPP in relation to the subpoena matters, or the summonses. Should there be matters that go beyond the summonses into the conduct of the trial or the directions relating to the stay applications, I am not instructed in relation to the trial but Mr Davidson is."

6 Salmat raised a preliminary point as to the power of the DPP to act for proposed witnesses. The application was supported by counsel for Aldridge and Hall but not by counsel for Ward.

7 The DPP is a statutory officer of the Commonwealth whose functions and powers are defined by legislation principally but not exclusively the Director of Public Prosecutions Act 1983 (Cth). The AFP, although empowered under the Australian Federal Police Act 1979 (Cth) s 6, is not an independent person: Forbes v Australian Federal Police (Commonwealth of Australia) [2004] FCAFC 95. AP is a Commonwealth incorporated authority: Australian Postal Corporation Act 1989 (Cth) s 12.

8 As a first issue, Salmat raised for consideration the question as to who bears the onus of proving an appropriate retainer. In the circumstances, it is unnecessary for me to resolve that question.

9 Questions as to the onus are irrelevant. Either the DPP has power to act for the AFP and AP or does not.

10 In the event the argument on 19 August 2005 focused almost entirely upon the issue as to the question of representation and whether the DPP could act for the AFP and AP. Little argument was advanced on the issues relevant to the witness summonses. The parties had made comprehensive written submissions about these issues and were content that I deal with the matters on those submissions.

11 I reserved my decision. Subsequently, the Court was notified by letter that the DPP had ceased acting for the AFP and AP and that the Australian Government Solicitor was acting. On 2 September 2005 the Australian Government Solicitor instructed Mr Allanson and produced most of the documents which had been sought under the witness summons. Objection was maintained to the production or inspection of a document referred to as the Bulk Mail Risk Management - Operating Instructions (the "Operating Instructions").

12 Subsequently, my Associate was advised by solicitors for Mr Aldridge that agreement had been reached with the Australian Government Solicitor over all documents except Item 5 of the subpoena and that negotiations were continuing in relation to that. In the circumstances, it was agreed that Mr Aldridge would not insist on production of the documents referred to in Item 5 and that if negotiations did not resolve the matter then the appropriate course would be to issue a fresh subpoena and litigate the matter. It was agreed that each party would bear its own costs.

13 No issue remains in respect of Mr Aldridge requiring adjudication.

14 Both Salmat and Ward maintained that the question of costs of the hearing on 19 August remains live and for that reason the issue of the status of the DPP in acting for the AFP and AP still ought to be determined. Because costs are pursued my decision on the power of the DPP to act for the AFP or AP is not in the nature of an advisory opinion: cf In re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257. There is a justiciable controversy to resolve in the exercise of federal jurisdiction.

15 Normally, costs are not an issue in proceedings on indictment: The prosecution neither claims nor incurs costs. Proceedings in relation to witness summonses are incidental or collateral to indictable proceedings thus are governed by the Criminal Procedure Act 2004 (WA) s 166:

(1) On an application by the witness, a party to the case or a person who has a sufficient interest in the witness summons, the court that issued a witness summons may cancel it, wholly or in part and on any terms it thinks fit.

(2) On such an application the court may order a party to the application to pay all or some of another such party's costs."

16 The opposition to the witness summonses by the AFP and AP on 19 August 2005 was effectively an application to cancel them because the documents sought should be immune from production. I consider that the matter whether the DPP had power to act for the parties summonsed is sufficiently entwined within the collateral proceedings as to cause the discretion to make a costs order to be enlivened. Therefore, it is necessary to determine the matter in controversy.

17 The Director of Public Prosecutions Act 1983 (Cth) s 6(1)(a), (b) and (n) provides:

(a) to institute prosecutions on indictment for indictable offences against the laws of the Commonwealth; and

(b) to carry on prosecutions of the kind referred to in paragraph (a) (not being prosecutions instituted by the Attorney-General or a Special Prosecutor), whether or not instituted by the Director; and

...

(n) to do anything incidental or conducive to the performance of any of the functions referred to in paragraphs (a) to (mb) and in subsection (2)."

18 The question is posed: Is acting for the AFP and AP on the witness summonses incidental or conducive to the performance of the function of instituting prosecutions on indictment?

19 The incidental power of the DPP was examined in Director of Public Prosecutions v Australian Broadcasting Corporation & Ors (1987) 7 NSWLR 588. At 597 the Court said:

"Section 6(1)(m)(which it would seem gives a permission to the DPP rather than confer a power upon him) and s 6(1)(n) do not contain a special and a general power in the sense referred to in those decisions. They contain a special power and the power to do what is incidental to that power. It is of the essence of an incidental power - whether implied or expressly conferred - that it extends the scope of the power to which it is incidental."

20 The Court held that the bringing of contempt proceedings was an exercise of an incidental power to bring prosecutions on indictment. The contempt proceedings were necessary to protect the administration of justice in respect of the indictable proceedings. A similar view was expressed in R v Pearce (1992) 7 WAR 395 at 409.

21 In Health Insurance Commission v Freeman (1998) FCR 544 the Court considered the incidental power and concluded that provided there is some nexus between an investigation being conducted by a Commonwealth authority and a statutory function of the DPP, the DPP may give legal advice.

22 A right to a fair trial is a central pillar of our criminal justice system: Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 at 298. It is a necessary incident of the DPP's power to bring and conduct prosecutions on indictment that so far as is possible a trial is conducted fairly. On occasions this may mean that the DPP will join with defence in opposing an application to set aside a subpoena issued to a person who is not party to the criminal proceedings. This fact alone suggests that the power to act on behalf of a third party is not an incident of the power to conduct a prosecution. Nor is it necessary or convenient for the DPP to act for a party in order to make submissions on the return of a subpoena. The prosecution is a party to the criminal proceedings and the DPP cannot be excluded from any part of those proceedings. By way of analogy: see Ex parte Roddan (1995) 14 WAR 279.

23 A Commonwealth prosecution on indictment is carried on in a State court according to the procedure set out in the laws of that State: Judiciary Act 1903 (Cth) s 68. The procedure for the issuing of a witness summons and the cancelling of a witness summons is the Criminal Procedure Act 2004 (WA). A witness or a party may apply to have a witness summons cancelled: s 166.

24 To protect its interests in a prosecution by making submissions on a witness summons it is unnecessary for the DPP to exercise any incidental power.

25 Of course the Director of Public Prosecutions Act is a Commonwealth statute of general application. The incidental power in s 6(1)(n) cannot be interpreted on the basis of legislation in one State that confers on parties certain procedural rights. I do not make this error. In an extension of the reasoning in Ex parte Roddan, the DPP has power to apply to set aside a witness summons if that summons was perceived as interfering with the prospects of a fair trial. This power arises because of the role of the DPP as prosecutor. There is a distinction between intervening as a party to litigation and acting for a stranger whose only interest is limited to the production of documents.

26 In the present case, Mr Allanson advised the Court that he did not have instructions to make submissions on behalf of the DPP as a party to the proceedings. His instructions were to appear for the AFP and AP on instructions from the DPP. I conclude that it is neither an incident of the performance of the DPP's functions nor is it conducive to the performance of those functions that the DPP represents a third party who is subject to a witness summons to appear and give evidence or produce documents to a court in the course of a prosecution. There is no nexus between the witness and the proceedings such as to make a grant of power necessary because there will be cases where the interests of the DPP and those of the witness do not coincide and the DPP has power in any event to intervene in the matter to protect the prosecution's interests.

27 The foregoing is sufficient to dispose of the matter so far as AP is concerned. I add this comment in respect of the AFP. Attention was directed to the disclosure requirements both at common law and under the Criminal Procedure Act. Freeman establishes that the DPP may act for the AFP by giving legal advice as long as an investigation by the AFP provides a sufficient nexus between the DPP's functions under s 6(1)(2) and s 6(n) of the Director of Public Prosecution Act.

28 In the present case, the production or objection to production of documents pursuant to a summons does not create a nexus. Nor are the disclosure requirements on the DPP any answer. It is not necessary or conducive for the DPP to act for the AFP on the summons just because the DPP has disclosure requirements with which it must independently comply.

29 Salmat and Ward seek orders for payment of costs by the DPP which relate directly to submissions concerning the retainer of the DPP to appear for AFP and AP. The argument on 19 August 2005 was almost entirely devoted to the issue of retainer. Salmat and Ward are entitled to costs of and incidental to that hearing because the DPP was not empowered to act for the witnesses. The proceedings purported to be proceedings pursuant to the Criminal Procedure Act s 166 and a discretion to award costs is given under s 166(2). This is the discretion I exercise. Although reference was made in argument to the Rules of the Supreme Court these Rules do not apply: Rules of the Supreme Court O 1 r 3(a). The issue as to who should pay the costs - the DPP or the "clients" (the AFP and AP) - has not been the subject of separate argument yet. I will give them 10 days in which to file submissions.

The claim for immunity: The Operating Instructions

30 The principles regarding disclosure in criminal cases in common law jurisdictions have evolved over the last 40 years.

31 Nearly 30 years ago in Maddison v Goldrick (1976) 1 NSWLR 651 Samuels JA (Street CJ and Moffitt P agreeing) said at 668:

"But, over recent years, the endeavours of law reformers, in most cases supported by the judges, have been directed to disposing of the last vestiges of trial by ambush, and to enabling each side to start the contest with the greatest possible knowledge of what is going to be alleged against him. It is true that these endeavours proceed upon a basis of mutuality which does not so far exist in criminal procedure, because of the proscription upon any procedural rule which might require a defendant to provide evidence against himself."

32 What was then foreshadowed has now largely come to pass. The clear intention of the Criminal Procedure Act 2004, inter alia, is to require full disclosure by the prosecution: s 35, s 44, s 45, s 95. The disclosure is of confessional material and evidential material as defined: s 42. The obligation to disclose is a continuing obligation.

33 The right to a fair trial is the central pillar of our criminal justice system: Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23. The right has manifested in rules of law and of practice designed to regulate the course of the trial: Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 at 299 and to require disclosure: R v Brown (Winston) (1994) 1 WLR 1599; Carter v Hayes SM (1994) 61 SASR 451; Easterday The Queen [2003] WASCA 69; (2003) 143 A Crim R 154 at 188 - 190; Button v The Queen [2002] WASCA 35; (2002) 25 WAR 382.

34 The statement of principle I have found most helpful is in R v Stinchcombe (1991) 3 SCR 326 a decision of the Supreme Court of Canada and affirmed in R v Taillefer; R v Duguay [2003] SCC 70:

"The Crown has a legal duty to disclose all relevant information to the defence. The fruits of the investigation which are in its possession are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done. The obligation to disclose is subject to a discretion with respect to withholding of information and to the timing and manner of disclosure. Crown counsel has a duty to respect the rules of privilege and to protect the identity of informers. A discretion must also be exercised with respect to the relevance of information. The Crown's discretion is reviewable by the trial Judge, who should be guided by the general principle that information should not be withheld if there is a reasonable possibility that this will impair the right of the accused to make full answer and defence."

35 The principles which guide prosecution disclosure must in general also guide disclosure by non-parties by way of witness summonses. A test for relevance often used is that it is "on the cards" that a document will materially assist the defence: Burmah Oil Co Ltd v Bank of England [1979] UKHL 4; [1980] AC 1090 per Lord Edmund-Davies at 1126; Air Canada v Secretary of State for Trade [1983] 2 AC 394 Lord Wilberforce at 439; Alister v The Queen (1984) 154 CLR 404 per Gibbs CJ at 414; Ran v The Queen (1996) 16 WAR 447 per Franklyn J at 454; Scott J at 456; Connell v The Queen (No 6) (1994) 12 WAR 133 at 203.

36 There is to be discerned from the authorities a general intention that in order to ensure a fair trial the State has an obligation to ensure that the fruits of an investigation are made available to the defence. There remain two qualifications to that broad-ranging and general duty. The first qualification is that, at least in matters not specifically enumerated within the Criminal Procedure Act as evidentiary material or confessional material, there is an onus on the defence to show some legitimate forensic purpose in the disclosure of the material. The second qualification is that even if there is shown to be a legitimate forensic purpose, the material may nevertheless be prevented from disclosure on the grounds of a public interest immunity. Such an immunity, of course, requires a balance to be made as to the differing community interests, on the one hand, in ensuring a fair trial and, on the other hand, for example, in preventing disclosure of certain police techniques and methods, of a covert nature, which, if they became generally known, would impact upon the ability of the Police Service to control crime. In the case of non-parties in this case, particularly AP, the parties commercial or other special interests such as protection of risk assessment material must be considered and are entitled to be accorded weight. In the case of a statutory corporation, public interest immunity may also be highly material.

37 After I had nearly completed this judgment I received a joint letter dated 4 October 2005 from the Australian Government Solicitor and solicitor for Ward:

"Both parties consider it appropriate that the Court be made aware that the Operating Instructions were previously disclosed by Australia Post in earlier proceedings against Mr. Ward in Victoria in 2000. So far as can be ascertained the circumstances of that disclosure are:

a) Mr Patrick Ward, together with other defendants, was charged in Victoria with offences of a similar nature to those now alleged against Mr. Ward in Western Australia;

b) In May and June 2000 a committal proceeding was conducted in relation to the Victorian charges;

c) A recent review of archived material relating to the Victorian proceedings revealed that the Operating Instructions had been produced by Australia Post in answer to a summons by Mr. Ward and one other defendant, on 30 May 2000;

d) Counsel for Australia Post, Mr. Rapke, produced the document and consented to its release to the parties and their legal representatives;

e) No public interest immunity was claimed however undertakings were sought from the parties in relation to the copying and disclosure of the document;

f) Oral undertakings by the parties legal representatives were given to the Court on 30 May;

g) The Oral undertakings were confirmed in writing by Counsel for Australia Post (copy attached);

h) Condition 4 of the undertaking required that all copies of the document were to be returned to Holding Redlich, solicitors for Australia Post, within 7 days of the completion of the court proceedings;

i) Consistent with the terms of the undertaking the Operating Instructions were returned to Holding Redlich.

Neither Mr. Ward or his legal representatives retained a copy of the Operating Instructions, nor any notes as to its contents and accordingly, continue to press for its production and inspection.

The Respondents maintain their claim for public interest immunity and legitimate forensic purpose."

38 In exercising judgment the Court can limit disclosure to lawyers. This power may inform the judgment to be made on the competing claims of the public interest immunity. Legal practitioners are officers of the Court and owe a duty to respect not only the confidences of their clients but also any confidences the Court may impose.

39 In my opinion, the Operating Instructions are likely to be relevant both at the application to stay the indictment and at trial. I acknowledge, however, the facts set out in the affidavit of Peter James Klemm and the public interest in restricting access and publication of this document, at least at this stage in the proceedings. However, the liberty of the subject is a countervailing matter which overrides the public interest in keeping the document privileged completely from production. I cannot overlook the fact that the Operating Instructions have already been disclosed to Mr Ward's legal advisers.

40 I order that the Operating Instructions can be inspected and will hear the parties as to the terms of that order.