Supreme Court of WA|1998-03-12|Before: Nicholson J, Wheeler J

Robert Falconer & Ors v Mary-Anne Kenworthy & Anor [1998] WASC 68 (12 March 1998)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

Practice and procedure - Summons to witness to produce documents to Court of Petty Sessions - Originating summons to set aside - Inherent jurisdiction of Supreme Court - Discretionary considerations - Whether legitimate forensic purpose for production of documents - "On the cards that the documents would materially assist" - Meaning of.

Criminal law and procedure - Undertaking not to prosecute - "Containment policy".

Evidence - Admissibility - Parliamentary privilege - Article 9 Bill of Rights 1688.

Attorney-General (NSW) v Stuart (1994) NSWLR 8

Conway v Rimmer [1968] UKHL 2; [1968] AC 910

By an originating summons, the plaintiff applies for the following relief:

"1. An order that the summons to the plaintiff .... be set aside as being an abuse of the process of the court; and

2. A declaration that the ruling made on the 31st day of October 1997 by Stipendiary Magistrate Deborah Bennett-Borlase that the plaintiff should comply with the summons, is of no effect; and

3. A declaration that the plaintiff is not bound to comply with the summons and is accordingly not bound to produce documents to the Court of Petty Sessions pursuant to the summons."

The summons in question is one issued by the defendant which, as originally framed, required the plaintiff to produce to the court any notes, documents, records or things in his control or possession relating to the defendant or any business in which she has been involved (and stipulating a lengthy list of businesses), together with any notes, documents, records or things in his control or possession in relation to "The Containment Policy" and certain other documents not now relevant. On 31 October 1997, the plaintiff sought to have that summons set aside. The defendant is charged on complaint that at Midland she kept premises for the purposes of prostitution, contrary to s76 of the Police Act.

After a hearing at which detailed submissions were made, and evidence was adduced on behalf of the plaintiff from Detective Senior Sergeant Lehmann, her Worship ruled that the summons was not in the nature of a fishing expedition and that there was a legitimate forensic purpose for it. However, she ruled that the summons was, as then framed, too wide and oppressive, and was required to be answered only to the extent of "any notes .... in relation to [the defendant] or any business in which she has been involved, including Langtrees International", and any "notes .... in relation to guidelines established in relation to the containment policy".

It is common ground that the matter comes before me not by way of appeal, nor by way of application for prerogative relief. Rather, the plaintiff seeks to invoke the inherent jurisdiction of this Court pursuant to s16 of the Supreme Court Act to prevent the abuse of the process of inferior courts. The plaintiff relies upon the decision of Heenan v Wojtczuk, unreported; SCt of WA (Nicholson J); Library No 7475; 24 January 1989, and upon the cases there cited.

In that case, Nicholson J said that it is accepted that there is power for this Court to set aside a witness summons "if it is demonstrated that the issue of the summons is an abuse of process for the reason that there could not possibly be any evidence which could be given by the witness relevant to the charge". (emphasis supplied). Two things should be noted about that decision which, in my respectful view, correctly summarises the effect of the authorities to which his Honour refers.

First, in Heenan, and in the cases to which his Honour refers, the intervention of the superior court was sought in lieu of resort being had to the court issuing the summons (whether because there was doubt about the jurisdiction of the inferior court to set the summons aside, or for other reasons), and not in addition to invoking the jurisdiction of the latter court. If this Court has jurisdiction to set aside a summons issued by the Court of Petty Sessions, that jurisdiction would apparently exist whether or not any person had first sought to invoke the jurisdiction of the Court of Petty Sessions in respect of the same summons. However, where, as here, application to set aside has first been made to the Court of Petty Sessions, and a ruling has been obtained, the discretionary considerations which govern the grant of relief should recognise that circumstance.

Next, it should be noted that the abuse to which Nicholson J refers is a very narrowly stated one; that "there could not possibly be any evidence" which could be given relevant to the charge. The plaintiff in this case asserts that the documents sought could have no possible relevance to the charge against the defendant. However, it also asserts that, even if some documents may be relevant, the summons is nevertheless oppressive, because it is too wide. While the nature of the abuse of process may not be relevant to the issue of jurisdiction, it may be material to questions of discretion.

Looking to discretionary considerations, the closest decision in point of principle to this case is that of Connell v Reynolds SM (1993) 9 WAR 27. In that case, a Magistrate had made rulings setting aside summonses to witnesses for the production of documents, on the ground that production would serve no legitimate forensic purpose. The summonses were the summonses of the defendant, who was charged with indictable offences and had elected a preliminary hearing. In that context, the Full Court took the view that this Court had jurisdiction to grant a declaration that the Magistrate had erred. However, the Chief Justice noted that "in the absence of exceptional circumstances, rulings on objections to produce documents on the grounds of relevance or similar grounds should be left to the judicial officer who is seized of the whole case" (at 39) while Ipp J took the view that a jurisdiction of the kind there sought to be invoked "will be exercised only in the most exceptional cases" (at 49, Owen J agreeing with Malcolm CJ and Ipp J).

The plaintiff sought to distinguish Connell v Reynolds on the basis that it involved a preliminary hearing, the result of which would be a determination as to whether there was a prima facie case, and that in the end the defendant could appeal if eventually convicted. In this case, the plaintiff submitted that the plaintiff was a "third party" who, if aggrieved by the Magistrate's decision, would have no right of appeal at the end of the entire procedure.

I do not see any basis for such a distinction. The plaintiff is the Commissioner of Police. A police officer is the complainant. The objection which the Commissioner takes is primarily an objection on the basis of relevance. If the summons stands, the Commissioner will be required to produce certain documents which may or may not be tendered in evidence. If irrelevant documents are tendered in evidence, and if they are taken into account by the Magistrate in arriving at a decision on the complaint so that the defendant is ultimately acquitted, then the complainant police officer will have open to her a right of appeal. It would seem improbable that the complainant would exercise that right otherwise than in accordance with the wishes of the plaintiff. Although the position in this case is not precisely similar, there seems to be a sufficiently close analogy with Connell v Reynolds for similar principles to apply. Were the basis of the Commissioner's objection different - were there, for example, an objection on the basis of public interest immunity because disclosure of the documents would be harmful to the process of enforcement of the law - then different considerations might apply.

The plaintiff submitted that, even if it were necessary to establish "exceptional circumstances" before a declaration would be granted which would have the effect of reversing the decision made by her Worship, such circumstances existed in this case. Essentially, the plaintiff submitted that it was in the interests of justice to save the expense of the lengthy trial which would ensue if the documents were produced and tendered; that it was inappropriate that the defendant, who by her own admission was engaged in an unlawful activity, should obtain access to police documents relating to the toleration of that activity; and that the summons was oppressive in its width so that the plaintiff should be spared the effort and inconvenience of complying with it. These considerations can be better assessed after an evaluation of the plaintiff's objections to the summons. Those objections, in turn, can only be understood against their factual background.

The defendant's submissions are to the effect that at one time she had been given permission by unidentified police officers to operate the premises at Midland for the purposes of prostitution within what is called "The Containment Policy", provided that she operated within the terms of that policy. She asserts that she has always operated within the terms of that policy and that it is a breach of that undertaking for the present prosecution to be brought, and that it should therefore be stayed. For the purposes of the proceedings before me, the plaintiff accepted that if the defendant were being prosecuted in breach of an undertaking then there would relevantly be an abuse of process and that the Court of Petty Sessions would have jurisdiction to stay the prosecution.

Before her Worship, the containment policy, both generally and so far as it applied to the defendant, was the subject of evidence by Detective Senior Sergeant Lehmann, who was at that time the acting officer in charge of the Vice Squad. He said that, although the policy originated before his time with the Vice Squad, he understood that a Commissioner of Police had introduced a policy of toleration of prostitution by reference to guidelines to be introduced by the Commissioner. At some stage, responsibility for issuing guidelines had "devolved down" from the Commissioner to the officer in charge of the Vice Squad or his superior.

It was not clear how the Senior Sergeant knew of this devolution, since when he was asked how guidelines came to be altered he said merely that he "thought" that they were altered by the officer in charge but that he personally had never been involved in a change of guidelines. However, he had known of changes to the guidelines to occur. When stationed in Kalgoorlie, he had been involved in policing of premises kept for the purposes of prostitution, and he had obtained his knowledge of the policy through "word of mouth". Similarly, when certain parts of the guidelines had been altered, the relevant information had been conveyed to officers (including himself) verbally (from whom, it is not clear).

Originally, in his understanding, the policy or guidelines had applied both to brothels and to escort agencies, the difference being that on the former premises sex took place on the premises while, in relation to the latter, the premises were used for the purpose of arranging appointments and sex took place elsewhere. It was during the period that the policy applied to both types of premises that the defendant had been given a licence to operate within the policy, apparently as an operator of an escort agency. As a result of a Supreme Court decision, those involved in enforcement of the law had taken the view that there was virtually "open slather" for any person to run an escort agency without fear of prosecution, and thenceforth the policy or guidelines had applied only to brothels.

He was at pains to assert that there was not actually a "containment policy", but merely a "set of guidelines". He said that there existed neither written guidelines nor written policy, although he said that, when workers in those premises came in to register, there was a "memo .... stating what those guidelines are". He then qualified that answer to say, "It's not actually a memo. It's just a paper ....."

The registration process referred to is apparently a procedure whereby those employed in the "sex industry" can attend at the Vice Squad and provide personal details and be given information about the containment policy. In relation to brothels operating within the containment policy, it is apparently a condition of the policy that such registration be effected. In relation to premises operating outside the policy, the Sergeant said that many workers register on a "voluntary basis", although there was no explanation of why they would wish to register with police details of their involvement in what may (depending upon the precise circumstances) be an unlawful activity.

It is submitted by the plaintiff that the premises at Midland are now operated as a brothel, and the evidence of the Detective Sergeant was that the policy would not allow for prostitution on such premises. What evidence is available does suggest that the allegation against the defendant is that sex occurred on the premises. As to the evidence of the Detective Sergeant about what the containment policy allowed, however, it is by no means clear to me that there was an express prohibition on sex taking place on the premises of an escort agency, as distinct from an understanding that an escort agency was merely another name for a different way of organising a business of prostitution.

The defendant sought to place before me an affidavit which annexes a document tabled by the Minister for Police in the Legislative Assembly on 11 November 1997 marked "Western Australian Police Service Prostitution Guidelines", and an extract from Hansard for that date. From that material, I was invited to draw the conclusion that there were documents setting out the containment policy, and that there was provision within the policy for escort agencies to operate within it.

There are two difficulties with the course which the defendant invites me to take in relation to this material. First, even if I were otherwise prepared to accept it, it is hearsay.

Second, whether a wide or a narrow view is taken of Article 9 of the Bill of Rights 1688 (1 Will & Mary, sess.2, c.2), which provides that "the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament", it appears that the course which the defendant invites me to take involves "questioning" what was said by the Minister for Police. Comparison is invited between that material and the sworn evidence of Detective Sergeant Lehmann which is inconsistent with it, for the purpose of forming a conclusion that it is unlikely that both the parliamentary material and the sworn evidence can be accurate. The relevant principles have been discussed in numerous cases; eg in Rost v Edwards [1990] 2 QB 460 (per Popplewell J), and in R v Murphy (1986) 5 NSWLR 18 (per Hunt J). Reference to the parliamentary material for the purpose identified would appear not to be permissible, and I would not be prepared to take that course, at least without inviting the presiding officer of the House to make submissions. However, in my view, it is not necessary for me to have regard to that material for the purpose of reaching a decision in the present case.

While the Sergeant may well have been clear in his own mind as to what the policy was and how it, and the registration process, operated, these matters were by no means clear from a reading of the evidence. However, at the least, there clearly appears to be, somewhere within the premises controlled by the plaintiff, a document setting out what is required of premises operating within the containment policy. It is equally clear that at one time permission was given to the defendant to operate premises at Midland within the containment policy, although those premises at the time consisted of an escort agency, and that some "registration" took place with respect to those premises.

It is against this background that the plaintiff asserts that her Worship should not have been satisfied, and nor should I, that it is "on the cards" that the documents sought would "materially assist" the defence.

There is one observation, arising from the course of argument, which I make about the usual test that it be "on the cards that the documents would materially assist" the defence. The expression is a well accepted one : Alister v The Queen (1984) 154 CLR 404, at 414, R v Saleam (1989) 16 NSWLR 14, at 17-18, RAN v The Queen (1996) 16 WAR 447, at 453 and 456. Perhaps because it is colourful, it is often used. However, it contains an inherent ambiguity which it is desirable to clarify at the outset. "Materially" may mean either "to an important degree; considerably" or, alternatively, "with reference to matter or material things; physically" (Macquarie Dictionary). Similarly, the Oxford English Dictionary distinguishes between the meanings of "connected with matter, not spirit" and "important, essential". Thus, one could understand a need to establish that documents would "materially" assist the defence as meaning that documents would, to an important degree, assist the defence, or simply that documents would, in some relevant respect or in some not fanciful way, assist the defence. I can see no reason why documents should be required to be produced only where their importance, as distinct from relevance, can be demonstrated, and nothing in any of the authorities to which I have been referred appears to require a contrary view. For that reason, it appears to me that the correct understanding of the test to which I have referred is, as Scott J put it in RAN, that there should be evidence that the documents are likely to be "relevant for some legitimate forensic purpose".

It is said by the plaintiff, put simply, that the defendant alone knows what she was told by way of undertaking, and what conditions were imposed upon her. She can give evidence of those facts, and of her attempts at compliance with the conditions which she says were imposed upon her. It is said that to permit her access to documents in the possession of the police in relation to the containment policy, or in relation to her business, would be merely to authorise a "fishing expedition". Indeed, it was submitted that she had indicated that she was given nothing in writing and that she merely wanted to find out if there happened to be any documents which would support her case.

It appears to me that this is oversimplifying the effect of the defendant's claim. It was put on her behalf by counsel (whose submissions were not challenged by counsel for the plaintiff and who, in effect, before me and before her Worship, gave a species of evidence from the Bar table about what the defendant's defence would be) that she would indeed be able to give evidence that she had been given an undertaking. It is clear that she registered, and that her business was the subject of registration, with the Vice Squad. Whether there was any notation upon those registration documents to show whether the premises were within or outside the containment policy is not clear, although, having regard to the vagueness of Detective Sergeant Lehmann's evidence, that possibility has not been ruled out. More importantly, it was said on behalf of the defendant, and with some force, that the best evidence of the existence and content of the containment policy would come from those documents, acknowledged to be in the possession of the plaintiff, which referred to the policy and laid down guidelines for its administration.

Next, it was said by the plaintiff that, even if documents relating to the containment policy exist, they could not be tendered without their makers being called. It was said that if an undertaking was made, and even if it were written down, the undertaking could be proved only by calling of the officer who gave it. There was thus no "forensic purpose" in requiring production. It seems to be said that, because the policy could not fetter the discretion of individual officers, no purpose would be served by enabling the defendant merely to prove the existence and content of the policy.

However, as I understand the evidence in relation to the containment policy, it is a policy which is considered by the Commissioner and by each individual police officer as binding upon individual police officers. Whether such a policy can be created, what its legal basis may be, and whether it is capable of overriding the discretion of individual officers, is a difficult question. The defendant will not find it easy to establish the propositions for which she contends in this respect. However, it appears to be implicit in the concession made for the plaintiff for the purposes of the present argument that an undertaking not to prosecute, of a binding nature, may be given. It may therefore be arguable that there is an undertaking binding upon all officers that if the defendant acts within the terms of the containment policy she will not be prosecuted.

Whether the "containment policy" has any legal basis is not a matter which either party sought to raise before me, although the plaintiff referred to King-Brooks v Roberts (1991) 5 WAR 500, in which reference was made to the discretionary nature of the powers of a constable. These at common law could not be exercised on the authority of any person but the constable himself. The older authorities, which emphasise the discretion of the constable (to the point of suggesting that it would be a criminal act to attempt to direct a constable not to perform his or her duties: Fisher v Oldham Corporation [1930] 2 KB 364, at 372-3, would require consideration in the light of the provisions of the Police Act and of the practical considerations which suggest that some co-ordination and direction of scarce resources of a modern police force must be undertaken (adverted to in R v Commissioner of Police; ex parte Blackburn [1968] 2 QB 118). These are matters of some complexity; for the present it is enough to note that the defendant's submissions appear to be arguable.

In summary, the evidence of Detective Sergeant Lehmann establishes that there is a registration procedure in relation to premises which are within the containment policy. The submissions made on behalf of the defendant are to the effect that she was informed during the process of registration that, provided she continued to operate these premises within the containment policy, she would not be prosecuted. It may reasonably be thought to be "on the cards" that there will be registration documents in relation to the defendant's premises which may lend weight to her assertion concerning her premises. So far as the content of the containment policy is concerned, the defendant says that she was operating within the requirements of the policy as she understood it from time to time. The evidence of Detective Sergeant Lehmann establishes that there is some documentation which sets out the requirements of the containment policy, to which reference is made when explaining the requirements of the policy to those registering under it. Again, it may reasonably be thought that the production of that material would be likely to assist the defendant in establishing the terms of the policy in order to demonstrate her compliance with it. It would not therefore be appropriate to set aside this summons for the reason that there could not possibly be any evidence relevant to the charge against the defendant.

However, the plaintiff also asserts that in its present form the summons is too wide. It is said that it is oppressive and that it would require the plaintiff to ransack his files to collect and produce documents, many of which could have no relevance to the charge : see R v Saleam (supra), at 17, Waind v Hill [1978] 1 NSWLR 372, at 382. The plaintiff reads affidavits of three officers who conducted document searches. The effect of the three affidavits is that it was difficult to ascertain whether documents located sufficiently related to the summons, that many hundreds of documents were located, that some documents provided personal details of those working within the "sex industry" which were provided in confidence to the police, and that some related to "policy and operational matters". Some documents, not surprisingly, were communications between the Commissioner and the Minister for Police. These affidavits were not put before her Worship, since they could not have been produced until she had ruled as to the extent to which the summons required to be answered. They were prepared as a result of searches which reflected the narrower formulation of the summons which her Worship ordered.

It does appear that the summons as formulated by her Worship may be unduly wide, and in that respect oppressive. It is difficult to see the justification for a summons which does more than require production of documents relating to the registration of the defendant and/or the Midland premises at the time at which the defendant purchased those premises, together with documents setting out the contents of the containment policy and any guidelines or requirements that are set out for those operating within it (as they were from time to time, from the time of the defendant's purchase of the premises). If the matter were coming freshly before me, I would be inclined to make an order along the lines which I have indicated.

However, the plaintiff chose in the first instance, and in my view properly, to go before the court which was seized of the complaint against the defendant, and out of which the summons had issued, in an endeavour to set aside the summons. That court, after hearing argument, and having had the advantage of observing Detective Sergeant Lehmann (whose evidence is not always easy to follow on the printed page), made an order effectively narrowing the scope of the summons which the plaintiff was required to answer. If difficulties are encountered in complying with that summons, it would appear to me to be appropriate for the plaintiff to be required to return to the jurisdiction which it chose and to place the difficulties before that court and seek appropriate relief. That, in my view, is the approach which would flow from adoption of the principles in Connell v Reynolds. Neither party suggests that this course is not open.

I am fortified in that conclusion by the indication which appears in the submissions of the plaintiff that the present application does not exhaust the objections which the plaintiff may ultimately make in relation to the summons. A claim of public interest immunity in respect of some documents may be made at an appropriate stage. That claim cannot be made until the documents answering the description in the summons are ascertained. If a claim is made, it may be necessary for a court to inspect the documents, and to determine whether on balance the public interest is better served by production or by refusal of production : Sankey v Whitlam (1978) 142 CLR 1. It would appear to be desirable that the inspection be undertaken by the court in which the complaint is to be heard; that court will be in the best position to determine what the significance of any particular document may be.

Application to this Court at this stage is an unnecessary fragmentation of a procedure which can be conducted in the Court of Petty Sessions. In the absence of exceptional circumstances, I would refuse to make the orders sought.

Turning to the exceptional circumstances alleged by the plaintiff, it is asserted that a "show trial" in relation to the containment policy will inevitably be lengthy and should be avoided if possible. This submission makes the assumption that the Court of Petty Sessions is likely to misconceive its function, and to permit a trial in relation to the "containment policy", rather than a trial in relation to the complaint against the defendant (which may involve determining the question of whether a relevant undertaking was given to her and would be breached by prosecution).

Next, it was said in effect that it was inappropriate that a brothel owner should be permitted to have access to large numbers of internal police documents relating to the regulation of prostitution. Of course, it would not be appropriate for the defendant to have open access to police files, and there may be public interest immunity claims which arise in relation to methods of investigation and the like. However, the containment policy is a policy by which the police apparently purport to tolerate - indeed, to regulate - the activity in which the defendant is engaged. Either such a policy and practice is lawful, or it is not. If it is lawful, it is nonsense to suggest that, while it is appropriate for the police to regulate the activities of the defendant, it is not appropriate for her to see documents setting out the rules governing that regulation. If it is unlawful, it does not lie in the mouth of the plaintiff, who apparently permits the policy to continue and the relevant documents to be kept up to date, to complain that the defendant engages in an activity which is unlawful.

I am of the view that no exceptional circumstances have been demonstrated by the plaintiff, and I would refuse as a matter of discretion to grant the relief sought, or any relief.

Robert Falconer & Ors v Mary-Anne Kenworthy & Anor [1998] WASC 68

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Judgment (49 paragraphs)

Robert Falconer & Ors v Mary-Anne Kenworthy & Anor [1998] WASC 68 (12 March 1998)

Parties

Cases Cited (7)