Salter v Director of Public Prosecutions [2009] NSWCA 357 | Case summary

4 November 2009 Natalie Maree Salter v The Director of Public Prosecutions (NSW) Judgment 1 SPIGELMAN CJ: This is an appeal from a judgment of R S Hulme J. His Honour granted leave to appeal, but dismissed the appeal, from a decision of Magistrate O'Shane. 2 Justice Hulme purported to exercise jurisdiction pursuant to s 53(3)(b) of the Crimes (Appeal and Review) Act 2001 ("the Act"). Section 53 relevantly provides: "(1) Any person who has been convicted or sentenced by the Local Court, otherwise than with respect to an environmental offence, may appeal to the Supreme Court against the conviction or sentence on a ground that involves: (a) a question of fact, or (b) a question of mixed law and fact, but only by leave of the Supreme Court. … (3) Any person against whom: (a) an order has been made by a Magistrate in relation to the person in any committal proceedings, or (b) an interlocutory order has been made by the Local Court in relation to the person in summary proceedings may appeal to the Supreme Court against the order, but only on a ground that involves a question of law alone, and only by leave of the Supreme Court." 3 A jurisdictional issue has arisen in this Court. The respondent submits that the decision of Magistrate O'Shane was not an "interlocutory order" within the meaning of s 53(3)(b). No such point was taken before Hulme J. It was raised for the first time after the original submissions had been filed in this Court. 4 The Court was informed that counsel for the applicant have acted throughout on a pro bono basis. The Crown has acknowledged this by not seeking costs before Hulme J or in this Court. Nor does the applicant seek an order for costs, notwithstanding the fact that this jurisdictional point was not taken by the respondent before Hulme J, or in this Court until very late. 5 The proceedings before Magistrate O'Shane involved 22 charges for contravention of s 308H of the Crimes Act 1900, which creates the offence of "unauthorised access to … restricted data held in a computer". 6 As at 22 January 2007 the applicant was a serving police officer in the New South Wales Police Force. On that date she accessed the New South Wales Police computer system. The agreed facts before Magistrate O'Shane and Justice Hulme stated that the applicant "accessed 22 discrete pieces of data on the COPS system [police computer system]" between 11.58am and 12.09pm. The data related to a person with whom the applicant had had a personal relationship, to that person's partner and to premises with which they were associated. The agreed facts stated that those accesses were not made in the course of the applicant's duties as a police officer. 7 Magistrate O'Shane, and Hulme J on appeal, dealt with two preliminary questions of law. One involved the proper interpretation of s 308H of the Crimes Act. The second involved what was inaccurately described as "duplicity", being a submission that the conduct constituted a single act of access and that, accordingly, 22 separate charges could not be lain. Both Magistrate O'Shane and Hulme J rejected each of these submissions. 8 The same points were pressed on appeal to this Court, but it is unnecessary to deal with them. The challenge to the jurisdiction purportedly exercised by Hulme J should, in my opinion, be upheld. 9 The issue before the Court is whether Magistrate O'Shane made an "order" within the meaning of s 53(3)(b). There was no issue as to whether her Honour's determination was "interlocutory". 10 It is noteworthy that the word "order" appears in s 53(3)(b) alone and not, as is often the case, as part of a broader formulation extending to "judgment or order". (Cf Criminal Appeal Act 1912, s 5F. See R v Steffan (1993) 30 NSWLR 633 at 636-639) 11 As Samuels JA pointed out in Barton v Walker [1979] 2 NSWLR 740 at 747D: "The word 'order' … is … a word familiar enough to lawyers commonly found in the collocation 'judgment or order'. The distinction between these two notions is reasonably clear, but the cases discriminating between them do not cast light on the precise meaning of 'order' itself." 12 Furthermore, as King CJ said in Legal Practitioners Complaints Committee v A Practitioner (1987) 46 SASR 126 at 127: "There is no completely satisfying definition of either 'judgment' or 'order' and no exhaustively definitive way of distinguishing between judicial acts which should be characterised as judgments and judicial acts which should be characterised as orders." 13 The word "order" is narrower in scope than the word "judgment", although they may substantially overlap in a particular statutory framework. It may well be that a decision on a separate question of law will constitute a "judgment" in a particular statutory context. For present purposes it is not strictly necessary to distinguish between the two concepts. 14 Whether a decision or ruling constitutes a "judgment or order" turns on whether there is an operative judicial act. (See Johnston v Nationwide News Pty Ltd [2005] NSWCA 17; (2005) 62 NSWLR 309 at [29].) There is no operative judicial act here. 15 Furthermore where, as in this case, a magistrate has done no more than answer a preliminary question of law, there has been, in my opinion, no order. As the joint judgment put it in Steffan supra at 639, the determination does not "command that anything be done (or not done) in the sense of an order of the court. It remains as no more than a ruling, one which can be tested on appeal to this Court after a conviction". 16 By s 53(1) of the Act an appeal lies to the Supreme Court from a conviction or sentence, by leave or, pursuant to s 52(1), without leave on a question of law. It is plainly undesirable to fragment committal or summary proceedings by interlocutory appeals. The ability to appeal after conviction strongly indicates that the word "order" in both pars (a) and (b) of s 53(3) should not be given an expansive meaning. 17 An authority which is reasonably analogous to the present case is Commonwealth v Mullane (1961) 106 CLR 166. The Court below ruled upon a point of law without proceeding to dismiss the case. The joint judgment of the High Court said at 169: "there was no determination. It was something done in the course of the hearing". Accordingly, there was no judgment or order within s 73(ii) of the Constitution. Notwithstanding the constitutional overlay of Mullane, the same interpretation should be given to the same words in the statute under consideration. 18 Mr J Glissan QC, who appeared with Mr W Wilcher for the applicant, accepted the difficulty of characterising her Honour's decision on the preliminary question of law as an "interlocutory order" within s 53(3)(b). His submissions were in a narrow compass. 19 Mr Glissan submitted that her Honour determined the principal legal issues and that was sufficient to make that determination an order. He referred to the judgment of King CJ in Legal Practitioners Complaints Committee supra where his Honour said at 127: "A judgment or order is a judicial act which decides the question or one of the questions which is raised for decision in the particular proceedings then before the court or judge." 20 However, in that case, as King CJ pointed out at 127: "The decision was drawn up as a formal order and sealed." 21 This was the "judicial act" which was critical, as his Honour emphasised at 127-128. There is nothing like that here. 22 Mr Glissan QC also invoked the following observations of Prior J at 130-131: "The Shorter Oxford English Dictionary defines 'order' to include a decision of a court of judge. When used in a statute constituting a Tribunal, 'order' would therefore suggest a meaning of a decision of the Tribunal, subject to a proper contrary intention expressed or necessarily inferred from the language used in the statute. The word 'decision' does appear in some sections of the Act, but its presence there does nothing to dictate a different meaning for the word 'order' than decisions on the issue before the Tribunal." 23 I do not understand his Honour to have intended to suggest that if some judicial act can be characterised as a "decision", then it also answers the description of an "order". In any event, his Honour's observations were confined to the statutory context there under consideration. 24 Section 53(3)(b) of the Act cannot be interpreted as if it said "an interlocutory decision" has been made. Nor can s 53(3)(a) be read as if it said a decision has been made in committal proceedings. That would permit fragmentation of both kinds of proceedings to a degree which could not have been intended. I note that the leave requirement would not, of itself, serve that purpose because of the possible disruption occasioned by applications for leave. 25 The orders actually made by Hulme J included an order granting leave to appeal, as well as an order dismissing the summons. There is no cross-appeal. The applicant does seek an order that the judgment of Hulme J should be set aside. However, that order is sought on the basis that the Court should uphold one of the two questions of law which the applicant sought. The jurisdictional challenge by the respondent should be instituted by way of cross-appeal and the orders I propose will require that to occur. 26 The charges will, no doubt, now be determined by the Local Court. Assuming that the proceedings will result in conviction and sentence, the applicant will have the choice of proceeding by way of merits appeal to the District Court or by way of an appeal to the Supreme Court pursuant to s 52(1) or s 53(1) of the Act. The history of the matter suggests that her advisers are more likely to take the latter route. Should that occur, notwithstanding the fact that the judgment of Hulme J is set aside, it may be that, by reason of the fact that the matter has been dealt with at first instance in this Court, an application will be made to have the proceedings referred to this Court. That is a matter for the applicant. 27 The orders I propose are:

3 Suspend orders 1 and 2 until the respondent files a cross-appeal seeking an order in the terms of order 1. 28 McCOLL JA: I agree with Spigelman CJ. 29 CAMPBELL JA: I agree with the reasons of Spigelman CJ, but add the following remarks. 30 The relevant decision of Magistrate O'Shane was delivered orally, stated her conclusion that each of the submissions made by the Applicant failed, and gave brief reasons why those submissions failed. Virtually immediately, counsel for the Applicant told her Honour: "… this point was being run as an interlocutory point and depending on what your Honour has found in respect of that interlocutory point there would be an appeal to the Supreme Court on the interlocutory point …" 31 He requested an adjournment of the proceedings to enable that appeal to be brought. The only actual order that her Honour made that day was one adjourning the matter for mention to a later date. 32 The summons in the Supreme Court failed to reflect the terms of section 53(3)(b) of the Crimes (Appeals and Review) Act 2001, in that it sought "leave to appeal from the interlocutory decision in the Tribunal below". Section 53(3)(b) does not confer jurisdiction for the Supreme Court to give leave to appeal against an "interlocutory decision" only against an "interlocutory order". There are some interlocutory decisions, of which those involved in the present case are examples, that are not in themselves interlocutory orders, and do not ever come to be given effect to by an interlocutory order. 33 I agree with the orders proposed by Spigelman CJ. **********

Salter v Director of Public Prosecutions

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