Step v Atkins & Anor [2008] NTCA 5

[2]

This is an appeal from a decision of a judge who, on 14 May 2004, confirmed the decision of a magistrate made on 17 April 2008 refusing leave to the appellant to inspect the document returned on summons (issued pursuant s 23 of the Justices Act) in relation to the names of the persons using the Palmerston Public Library computers between 1130 to 1430 hours on 8 August 2007.

[3]

The appeal to the Court of Appeal was scheduled to be heard on 24 July 2008. On the day prior to the scheduled hearing, the second respondent filed and served a summons addressed to the appellant seeking the following orders:

1. The appeal be dismissed as incompetent;

2. costs; and

3. such further or other orders as the Court sees fit.

[4]

The application is made pursuant to Order 84.16 of the Supreme Court Rules which provides as follows:

(1) A respondent may apply on summons at any time for an order dismissing an appeal as incompetent.

(2) On the hearing of a summons under subrule (1), the burden of establishing the competency of the appeal is on the appellant.

(3) Where, in an appeal to the Court of Appeal, a respondent does not move under subrule (1) but the appeal nevertheless is dismissed by the Court as incompetent, the respondent shall not, unless the Court otherwise orders, receive any costs of the appeal and the Court of Appeal may order that he pay the appellant's costs of the appeal proving useless or unnecessary."

[5]

On 24 July 2008 the appellant, Ms Step, sought and was granted an adjournment to enable her time to prepare any argument she may wish to present in opposition to the second respondent's application on summons. Ms Step further indicated that she had nothing further to add with respect to her own appeal in addition to her detailed written decisions that had already been provided to the Court.

[6]

The matter was then adjourned before a differently constituted Court to be heard on 1 August 2008.

[7]

An information for indictable offence dated 6 September 2007 alleged that on 8 August 2007 the appellant, Anthea Kandapuma Step unlawfully assaulted John Adrian Doyle at Palmerston in the Northern Territory contrary to s 188(1) of the Criminal Code.

[8]

The précis of police allegations is that this offence allegedly occurred at or about 1250 on 8 August 2007 at the Palmerston Public Library.

[9]

On 25 March 2008, the appellant issued a summons to witness to produce documents on information addressed to the Chief Librarian, Palmerston Public Library, Goyder Square, Northern Territory. The summons was issued pursuant to s 23 of the Justices Act.

[10]

The summons sought production of three documents, the relevant document for the present purposes being:

"2) The list of the names of persons who were using the Palmerston Public Library computers between 1130-1430 hours on 8 August 2007."

[11]

The summons was returnable to the Court of Summary Jurisdiction on 17 April 2008. The application on summons proceeded to hearing on that date.

[12]

Ms Sievers who represented the second respondent agreed to provide to the appellant the names of the librarians who were on duty at the relevant time. This was in response to a request on the summons for:

(1) The list of names of the librarians who were working at the Palmerston Public Library between 1130-1430 hours on 8 August 2007.

[13]

The second respondent answered the summons by producing to the Court a document which listed the names of persons who were using the Palmerston Public Library computers between the hours of 1130-1430 on 8 August 2007. Ms Sievers submitted that the learned stipendiary magistrate should in the exercise of her discretion, refuse to provide access to that document to Ms Step, the appellant in these proceedings and the defendant to the charges.

[14]

The submission was on two basis:

The first basis is that it is not a document for the purpose of evidence and is not a document that can be summonsed under s 23 of the Justices Act which provides as follows:

"23 Summons to witness

If a Justice or the clerk is satisfied that any person is likely to give material evidence or to have in his possession or power any article (which term includes any document, writing, or thing) required for the purposes of evidence upon behalf of either party to any information, complaint or application, the Justice or clerk may issue a summons to the person requiring him to appear, at a time and place mentioned in the summons, before such Justices as shall then be there, to testify what he knows concerning the matter of the information, complaint or application, or to produce the article, or to testify and produce as aforesaid (as the case may be).

The second basis for the second respondent seeking the magistrate exercise her discretion and not provide the document to Ms Step arose out of concerns for the privacy of the users of the computers in the library. It was submitted on behalf of the second respondent that the time frame was too long in that the alleged incident took only a short time and some 35 persons used the computers between the hours stipulated on the summons.

[15]

The learned stipendiary magistrate refused to grant leave to Ms Step to inspect the document produced on summons in relation to the names of the persons using the Palmerston Public Library computers between 1130 to 1430 hours on 8 August 2007. The learned stipendiary magistrate formed the view that the document does not itself meet the description required by s 23 of the Justices Act. Her Honour also stated that it was an attempt at discovery and discovery is not permitted in criminal proceedings.

[16]

On 18 April 2008, Ms Step filed a notice of appeal to the Supreme Court on the grounds that "Her Honour erred in law when making the above order".

[17]

On 23 April 2008, a letter was forwarded to the appellant and respondent advising the matter had been placed in the Callover before the Registrar of the Supreme Court at 0900 hours on 14 May 2008.

[18]

On 29 April 2008 the charge on indictment was mentioned in the Court of Summary Jurisdiction. The charge had been listed for hearing on 6 May 2008. Ms Step made an application to adjourn the hearing scheduled for 6 May 2007. Ms Step advised the Court of Summary Jurisdiction that she had filed an appeal to the Supreme Court in relation to her summons for production of the document relating to the Palmerston Public Library. She sought an adjournment of the hearing listed for 6 May 2008 until a date after the appeal to the Supreme Court had been finalised.

[19]

The hearing of the charge against Ms Step was adjourned to be heard on 8 August 2008. The matter was also to be mentioned again in the Court of Summary Jurisdiction on 14 May 2008 following the mention of the matter in the Supreme Court Callover at 0900 hours on14 May 2008.

[20]

On 7 May 2008, a letter was forwarded to Ms Step from the Associate to the Trial Judge referring to earlier discussions and advising the matter would be mentioned before the Trial Judge at 0900 hours on 14 May 2008.

[21]

On 14 May 2008, the matter came before the Trial Judge. His Honour heard submissions from Ms Step addressing the merits of her appeal. His Honour noted that the appeal was not properly on foot before him. This was because the Notice of Appeal had not at that time been served on the magistrate or either the first or second respondents. His Honour then addressed the merits of the appeal. He gave reasons for his decision that as there was no merit in the appeal he would strike out the Notice of Appeal. The appeal was then struck out on the basis that it did not have merit.

[22]

On 10 June 2008, Ms Step filed an appeal to the Court of Appeal of the Northern Territory setting out her grounds of appeal and seeking orders that she be granted leave to inspect the document that was produced to the Court of Summary Jurisdiction on 17 April 2008 in response to the summons dated 25 March 2008, namely, "The list of names of persons who were using the Palmerston Public Library's computers between 1130-1430 hours on 8 August 2007".

[23]

It is appropriate this Court should first consider the summons issued by the second respondent on 23 July 2008 that the appeal is incompetent.

[24]

This matter was not raised before his Honour the Trial Judge on 14 May 2008.

[25]

The right of appeal to the Supreme Court from the Court of Summary Jurisdiction is set out in s 163 of the Justices Act which provides as follows:

(1) A party to proceedings before the Court may appeal to the Supreme Court from a conviction, order, or adjudication of the Court (including a conviction of a minor indictable offence but not including an order dismissing a complaint of an offence), on a ground which involves -

(b) an error or mistake, on the part of the Justices whose decision is appealed against, on a matter or question of fact alone, or a matter or question of law alone, or a matter or question of both fact and law,

as hereinafter provided, in every case, unless some Special Act expressly declares that such a conviction, order, or adjudication shall be final or otherwise expressly prohibits an appeal against it.

(2) Any provision of any Special Act conferring a right of appeal to a Local Court against any conviction, order, or adjudication mentioned in subsection (1) or (3) shall be read as conferring a right of appeal to the Supreme Court under this Act in lieu of to a Local Court.

(3) A party to proceedings before the Court arising from a complaint or an information in relation to a minor indictable offence that the Court summarily disposes of may appeal to the Supreme Court from an order or adjudication of the Court dismissing the complaint or information.

(4) Subsection (3) does not apply if a Special Act expressly declares that the order or adjudication is to be final or otherwise expressly prohibits an appeal against it.

(5) An appeal under subsection (3) may be on a ground that involves an error or mistake on the part of the Justices whose decision is appealed against on a matter or question of law alone or a matter or question of both fact and law.

(6) Section 176A does not apply to an appeal under subsection (3)."

[26]

The provisions of s 163 have been considered by the Supreme Court of the Northern Territory in the matter of Macey v Cooper [1999] NTSC 65; (1999) 150 FLR 476 and Tcherna v Garner [1999] NTSC 134; (1999) 154 FLR 243.

[27]

I am aware that s 163 of the Justices Act has been amended since those decisions were delivered. However, the amendments are not relevant for present purposes being the additions of paragraphs 3, 4, 5 and 6 of s 163.

[28]

In both decisions of the Supreme Court of the Northern Territory referred to above, reliance was placed upon a number of cases determined in the Supreme Court of South Australia considering the same provision in the South Australian Justices Act.

[29]

The appeal to the Supreme Court and ultimately to this Court, is from a decision of the learned stipendiary magistrate which was an "interlocutory order". It was not an appeal from a conviction order or adjudication of the Court.

[30]

In Macey v Cooper (supra), Martin CJ at paragraph 12 stated:

"As to her Worship's declining to proceed to hear and determine the matter of the complaint, I am of the view that it does not give rise to a right of appeal under s163 of the Justices Act (NT). That provision is taken from s163 of the Justices Act, South Australia, and it has long been held in that Court that the right of appeal only lies from an order determining the subject matter of the complaint, that is, from a final and not from an interlocutory order. The South Australian authorities go back to a review of the history of the appeal provisions undertaken by Poole J in Stuart v Allchurch (1923) SASR 333 and progress through The Queen v O'Loughlin; ex parte Ralphs (1971) 1 SASR 219; Gray v Steele (1973) 4 SASR 291; Daddow v French (1975) 12 SASR 440 and Dubois v Lovegrove (1987) 45 SASR 309. Reference might also be made to Commissioner of Police v Bradey (1954) SASR 314. I see no good reason to depart from that long line of authority upon legislation emanating from that State and which is indistinguishable for present purposes."

[31]

In the matter of Tcherna v Garner (supra), reference was made at paragraphs 32 and 33 to two of the decisions of the Supreme Court of South Australia as follows:

"[32] In the matter of Stuart v Allchurch [1923] SASR 333 Poole J held that a refusal to dismiss a complaint but rather to adjourn the complaint for rehearing was not a conviction, adjudication or order within the provisions of s163 of the Justices Act and stated at p 338:

"It appears to me that the Legislature intended to use the term 'order or adjudication' in the sense in which it had been previously used in similar legislation, and that it covers orders which decide the substantive rights of the parties, and not orders deciding matters of procedure which are merely incidental."

[33] In the matter of Dubois v Lovegrove (1987) 45 SASR 309 Cox J stated at p 310:

"I raised at the outset this morning the question of the competence of this appeal. Section 163 of the Justices Act 1921 gives an aggrieved party a right of appeal to the Supreme Court against 'every conviction, order and adjudication of a court of summary jurisdiction (including an order dismissing a charge of a simple offence or a minor indictable offence)'. It has been held consistently by this Court for more than sixty years that the right of appeal under s 163 against an order or adjudication is restricted to a final order or adjudication: see Stuart v Allchurch [1923] SASR 333. There can be no appeal against a mere interlocutory decision."

[32]

The rationale for this provision in s 163 is that a defendant in criminal proceedings should not be allowed to disrupt the ultimate disposition of the criminal charges by challenging interlocutory orders prior to a conviction order or adjudication of the Court. The defendant has a right to appeal following upon any such conviction, order or adjudication.

[33]

Ms Step has filed written submissions opposing the application by the second respondent. The appellant asserts that the decision by the learned stipendiary magistrate is a final order because on Ms Step's argument this prevents her from searching for witnesses.

[34]

However, this is not what is meant by a final order; it must, in this case, be a final order in the proceedings between the prosecution and Ms Step.

[35]

The decision by the learned stipendiary magistrate was an interlocutory order made in the course of proceedings between the prosecution and Ms Step as a defendant.

[36]

Any rights of appeal from the interlocutory order are preserved until there is a final adjudication of the charges against Ms Step.

[37]

Ms Step refers to the decision in L v ABC & Ors (2005) NTSC 5, 11 February 2005. I have read that decision. Mildren J made an order pursuant to s 57 of the Evidence Act forbidding the publication of the name of the defendant in the Court of Summary Jurisdiction. His Honour noted that it was not necessary to consider the appeal under s 163 of the Justices Act. That is distinguishable from the matter before this Court which must consider the provisions of s 163 of the Justices Act.

[38]

Ms Step continued with her written submissions under the heading "The Prosecution Impedes the Course of Justice". Here the appellant makes a number of assertions concerning the actions of the prosecution in respect of the charge that has been laid against her. These are not matters that can be determined on this appeal. When the charge is heard in the Court of Summary Jurisdiction, the onus is upon the prosecution to prove the charge beyond reasonable doubt. The onus is not upon Ms Step to prove her innocence. If Ms Step believes the prosecution have failed to properly investigate the matter, to call all credible witnesses, or have unfairly prevented her from speaking with witnesses, then that is a matter to be raised at the time of the hearing of the charges. I would strongly urge Ms Step to seek legal advice as to her position and the conduct of her defence.

[39]

This Court is confined to dealing with the appeal under s 163 of the Justices Act relating to the exercise of discretion by the learned stipendiary magistrate to refuse the appellant access to a document. That decision was an interlocutory order. Accordingly, the appeal is incompetent.

[40]

Having found the appeal is incompetent under s 163 of the Justices Act, for the reasons stated above, there is no need to consider the further submission by counsel for the second respondent that the appeal is also incompetent because the appeal before Angel J was not properly on foot as it had not been served on either respondent.

[41]

It is also not necessary to deal with the merits of the appeal as the appeal, having been found incompetent, that is the end of the matter. It is only necessary to make an order that the appeal be dismissed as incompetent.

[42]

However, Ms Step is not represented by a lawyer and has herself endeavoured to argue the merits of the appeal. As a matter of respect to her I will set out my reasons why, if the appeal had been competent, it could not in any event, have succeeded on the merits.

[43]

The summons to witness to produce documents was issued under s 23 of the Justices Act. That section has been set out in paragraph [13] of these Reasons for Judgment.

[44]

The facts are that the second respondent did answer the summons and produced the document with the list of names, as requested, to the magistrate. Once that document was produced, the magistrate had a discretion whether or not to grant access to the document to the appellant (Llewellyn v Finn and Collins [1994] NTSC 80; (1994) 74 A Crim R 519).

[45]

The learned stipendiary magistrate was asked to, and did in fact, exercise her discretion to refuse to allow Ms Step access to the document. In doing this the magistrate read the document and considered whether Ms Step should be allowed access to it (Christopher John Rice v John Henry Chute (1995) 119 FLR 181) Gray J stated:

"7. If the person served with the Summons makes no objection or if his objection is overruled, the Court must exercise its discretion as to whether the document should be disclosed to the party seeking access. This will involve the Court in a consideration of the relevance of the documents to any issue raised or likely to be raised in the proceeding. In considering this question, the Court should apply a liberal test of relevance. It is sufficient if it is "on the cards" that the documents would materially assist the party seeking access. Alister v R [1983-1984] 154 CLR 404 per Gibbs C.J. at p 44. The Court should not refuse access simply because the Magistrate does not believe that the documents will assist the party concerned. R v Saleam (1989) 16 NSWLR 14 per Hunt J at 18. Nor should access to a relevant document be refused because the applicant for access has no knowledge of the contents of a particular document or even of its existence. National Employers Mutual General Association Ltd v Waind [1978] 1 NSWLR 372 at 382.

[46]

In the exercise of her discretion, the learned stipendiary magistrate had to decide if pursuant to s 23 "... the document is required for the purposes of evidence upon behalf of either party to any information, complaint or application ...".

[47]

In this matter, the document that is sought to be inspected by the appellant contains a list of names. I agree with the submissions made by Ms Sievers for the second respondent, that it is not a document that can be tendered in evidence to prove an issue in the case. It is not a document that witnesses could be cross examined upon or asked to refresh their memory from.

[48]

Ms Step stated in the Magistrates Court, Supreme Court and in her Notice of Appeal, that her reasons for seeking the list of names was so that she could identify potential witnesses. In paragraph 7 of her Grounds of Appeal to this Court, Ms Step states:

"7. Section 23 of the Justices Act does not expressly forbid the use of summons to identify potential witnesses; and under the common law system 'everything is permitted except what is expressly forbidden.' [Deacon v Australian Capital Territory [2001] ACTSC 8 (8 February 2001) per Higgins J at para 50].

8. Even if the interpretation of s 23 of the Justices Act in respect of the use of summons to identify potential witnesses was in doubt, the presumption regarding penal statutes is that a penal statute is construed to the benefit of the defendant and so the defendant's request to inspect the list of potential witnesses that was produced to the Court of Summary Jurisdiction should have been granted."

[49]

I refer also to paragraphs 42-44 inclusive of the appellants written submission to the Court of Appeal.

[50]

In the matter of The Queen v White (1976) 13 SASR 276, the Court of Appeal in South Australia was asked to consider a similar request, Hogarth, Zelling and King JJ at pp 281-282:

"The trial Judge refused to compel the production of the record book. This procedure was subsequently repeated at the trial before the jury. A subpoena duces tecum is a writ which is issued by the court as of course upon application by praecipe by or on behalf of a party to a cause or matter commanding some person or persons to attend before the court to give evidence, and also to have and produce some document or documents relating to the matter. It is not legitimate to use a subpoena for the purpose of endeavouring to obtain what would be in effect discovery of documents against a person who, being a stranger, is not liable to make discovery: Commissioner for Railways v. Small (1938) 38 SR (NSW) 564 at p 573. It is a question for the trial Judge in each case whether the document is relevant and whether it is reasonable to compel production: Amey v. Long [1808] EngR 205; (1808) 9 East 473 at pp 485-486. The book, production of which is required by the subpoena, could not be given in evidence, could not be used to refresh the memory of a witness, and could not be used as the basis for cross-examination. It was not itself relevant to any issue at the trial nor could it be used to assist in eliciting evidence which was relevant to any issue at the trial. Its only function would be to serve as a source of leads for the appellant's solicitors by means of which they hoped to find some witness or witnesses who might be able to give relevant evidence. This is not a legitimate use of the subpoena duces tecum and we consider that the trial Judge was correct, on this ground alone, in refusing to compel production of the book. ..."

[51]

This principle was repeated in the Victorian Supreme Court decision of Sobh v Police Force of Victoria [1994] VicRp 2; [1994] 1 VR 41; (1993) 65 A Crim R 466.

[52]

The onus is upon the appellant who is the party seeking access to the document to show the document is relevant to an issue in the case. In Llewellyn v Finn & Collins (supra) at 523, Martin CJ stated:

"... Those cases make it plain that there is an onus on an accused seeking production and inspection of witness statements to show that there is an issue or issues in the case to which the document or documents relate, otherwise the accused is simply embarking on a fishing expedition and that is not permissible. ....

[53]

Ms Step in her written submission stated that she was not attempting discovery because she specifically identified the document she demanded for production. However, this is not to the point; the discovery being attempted by the appellant was to find the names of persons who may be potential witnesses and who may or may not be of assistance in providing evidence.

[54]

Ms Step complains that the learned stipendiary magistrate allowed the appellant to have the names of the librarians at the relevant time but not the names of the persons on the computers. However, the reason Ms Step was given the names of the librarians was because Ms Sievers, on behalf of the second respondent, and after consulting with the two librarians, was prepared to provide this information without the necessity for a Court order. The second respondent was not prepared to make such a concession with respect to the names of persons on the computers in the Palmerston Public Library at the relevant time.

[55]

Ms Step places great reliance on the fact that s 23 of the Justices Act does not expressly forbid the use of summons to identify potential witnesses and refers to the statement by Higgins J in Deacon v Australian Capital Territory [2001] ACTSC 8, 8 February 2001, at paragraph 50 that "under the common law system everything is permitted except what is expressly forbidden". This in turn was a quote from Connolly v Dale [1996] QB 120. However, Deacon v Australian Capital Territory (supra) was dealing with an intentional attempt to dissuade a witness from giving truthful evidence. Connolly v Dale (supra) involves a consideration of an application for contempt of Court.

[56]

In my opinion, these cases do not assist the appellant. Ms Step may pursue other avenues to locate any potential witnesses which include but are not limited to, asking the police to make appropriate enquiries, placing appropriate notices on any public notice board in the area, placing appropriate notices in the local newspaper or other relevant publications.

[57]

In the context of Ms Step's endeavour to identify persons who were in a position to see the relevant incident, I note that if the police have identified any persons who can give relevant evidence, the "Crown" duty of disclosure would require disclosure of the identity of such persons to Ms Step.

[58]

The appellant has not discharged the onus upon her to establish that the document produced to the Court following a summons addressed to the Chief Librarian Palmerston Public Library amounts to "evidence" in accordance with the provisions of s 23 of the Justices Act.

[59]

For these reasons even if the appeal were competent, it could not succeed.

[60]

I would make an order that the appeal be dismissed as incompetent pursuant to s 163 of the Justices Act.

[61]

I agree with the Reasons for Decision of Thomas J.

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