Supreme Court New South Wales Medium Neutral Citation: Commissioner of Police, NSW Police Force v Alahmad [2023] NSWSC 762 Hearing dates: 03 July 2023 Date of orders: 03 July 2023 Decision date: 03 July 2023 Jurisdiction: Common Law Before: Garling J Decision: (1) Summons dismissed. (2) Plaintiff to pay the defendant's costs. Catchwords: APPEALS – Appeal from Local Court to Supreme Court – Where defendant issued subpoena to Commissioner of Police – Magistrate declined application by Commissioner to set aside subpoena – Commissioner sought leave to appeal pursuant to s 53(3)(a) of Crimes (Appeal and Review) Act 2001 –Section 53 provides avenue of appeal to defendants only, not third parties – No jurisdiction to grant leave to appeal – Summons dismissed STATUTORY INTERPRETATION – Crimes (Appeal and Review) Act 2001, s 53(3)(a) – Whether s 53(3)(a) provides avenue of appeal to third party subpoena recipient – Meaning of "any person" – Purpose, context and history of provision considered – Commissioner of Police v Chidgey followed Legislation Cited: Crimes (Appeal and Review) Act 2001 Criminal Appeal Act 1912 Criminal Procedure Act 1986 Interpretation Act 1987 Justices Act 1902 Supreme Court Act 1970 Cases Cited: Commissioner of Police v Chidgey & Anor [2007] NSWSC 417 Jolley v DPP [2020] NSWSC 1406 Paulo v Commissioner for Police [2021] NSWSC 517 Texts Cited: Not Applicable Category: Principal judgment Parties: Commissioner of Police (P) Assad Alahmad (D) Representation: Counsel: J Emmett SC / J Brook (P) J Lang (D) Solicitors: Crown Solicitors (P) Khan Law & Associates Pty Ltd (D) File Number(s): 2023/104854 Publication restriction: Not Applicable EX TEMPORE JUDGMENT 1. On 31 March 2023, the Commissioner of Police in the New South Wales Police Force ("the Commissioner") commenced proceedings by Summons seeking leave to appeal to this Court from an order made on 3 March 2023 by Milovanovic ALCM, in which his Honour declined to set aside a number of paragraphs of a schedule to a subpoena. Local Court Proceedings 1. At the time that order was made, the learned Magistrate was sitting in criminal proceedings in the Local Court brought against Mr Asaad Alahmad. The charges which were being considered at that time included indictable offences which, subject to proper proof and then consideration, would be committed for trial in the District Court in due course. 2. The solicitor for Mr Alahmad had issued a subpoena addressed to the Commissioner, requiring the production of a series of documents which related to the investigation and prosecution of her client. After discussions between the parties, the learned Magistrate was called upon to deal with only two of the paragraphs in the subpoena. 3. The documents required to be produced, as I have said, related to the investigation and prosecution of the defendant in these proceedings. In due course there may be claims for some form of privilege, such as legal professional privilege, or privilege of a kind constituted by a claim for public interest immunity, which are to be made with respect to the documents which are sought. But any such claims have not yet been considered, and nothing in this judgment relates to or deals with any such possible claims. 4. Rather, what occurred in the Local Court was that the Commissioner made an application to set aside the two paragraphs on the basis that the subpoena, including those two paragraphs, lacked any discernible legitimate forensic purpose and, accordingly, was an abuse of process. 5. Milovanovic ALCM heard submissions on that question and concluded that there was a legitimate forensic purpose. He ordered that the Commissioner's application should be set aside, that is to say, that it be dismissed. As I have said, there remain issues about public interest immunity, or some other form of privilege to be dealt with. Supreme Court Proceedings 1. The Summons brought by the Commissioner seeks an order of this Court, granting leave to appeal against the Magistrate's decision pursuant to s 53(3)(a) of the Crimes (Appeal and Review) Act 2001 ("the Act"). 2. The matter was fixed for hearing today, and the parties had prepared and relied upon the contents of a court book containing all of the relevant material. In addition, there was submissions provided in writing by both parties. Neither party raised any question which suggested that this Court did not have jurisdiction to hear the application for leave to appeal and to make consequent orders. 3. However, when the matter commenced this morning, the Court raised with the parties the question of whether it had any jurisdiction in this matter to grant leave pursuant to s 53(3)(a) of the Act. The Court drew the attention of the parties to a decision, Commissioner of Police v Chidgey & Anor [2007] NSWSC 417, being a decision of Malpass As-J in which his Honour held that, in circumstances similar to those which apply here, this Court did not have any jurisdiction to deal with the appeal. 4. After a short adjournment to enable the parties to consider the matter, the Court took argument on that question as though it was a preliminary question. 5. It is appropriate for that question to be heard and determined at the commencement of the proceedings because if the fact is that this Court does not have jurisdiction to determine the matter, it would not be appropriate for it to go on, take evidence and submissions and then give a judgment in a matter of significant contest in circumstances where it has no jurisdiction. Accordingly, having heard argument on the matter, it is appropriate for the Court to consider the submissions and deliver a judgment. Relevant Statutory Provisions 1. This Court obtains jurisdiction in a variety of ways. It has an inherent jurisdiction. Another plenary basis of jurisdiction is to be found in s 69 of the Supreme Court Act 1970, which provides that in any proceedings where a relief or remedy could have been granted by way of a writ, whether a prohibition, mandamus, certiorari or of any other description, the Court has the jurisdiction to make orders in an appropriate form granting such relief. 2. Other bases for jurisdiction are to be found in statutes which expressly confer jurisdiction on the Court. However, where jurisdiction is based upon the statute, then one must examine the terms of the statute to decide whether or not this Court has jurisdiction. 3. Part 5 of the Act is the basis relied upon for jurisdiction in this case. Part 5 applies to appeals from the Local Court to the Supreme Court and relates to criminal proceedings. 4. There are three divisions in Pt 5. According to their headings, the first, Div 1, applies to appeals by defendants. The second, Div 2, applies to appeals by prosecutors. The third, Div 3, contains a number of miscellaneous provisions. 5. This proceeding is brought by the Commissioner in reliance upon s 53(3), which is to be found in Div 1 of Pt 5 of the Act. In considering that Division, the first section is s 52, which provides for appeals as of right. Section 52(1) commences with the words, "Any person who has been convicted or sentenced by the Local Court". The subsection goes on to provide that such a person "may appeal to the Supreme Court against the conviction or sentence, but only a ground that involves that question of law alone". 6. Section 53 deals with appeal requiring leave. It also commences with the same phrase in s 53(1), namely, "Any person who has been convicted or sentenced by the Local Court". It provides that such a person "may appeal to the Supreme Court on a ground that involves a question of fact or question of mixed law and fact but only by leave of the Supreme Court". 7. Section 53(3) is the relevant provision. It says: (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. 1. In dealing with an appeal pursuant to s 53(3), s 55(3) provides that the Court may determine an appeal either by setting aside the order made in the Local Court and making such other order as it thinks just or by dismissing the appeal. 2. Division 2, as I have said, deals with appeals by prosecutors. Similar, although not identical, terms are used with respect to that provision save that the words, "any person who has been convicted or sentenced", or alternatively, "any person against whom an order has been made", are replaced by the term, "the prosecutor". Submissions 1. The Commissioner's submission is that although she is neither the defendant or the prosecutor in the Local Court proceedings, she is entitled to appeal, subject to a grant of leave, to this Court relying upon s 53(3) of the Act. In support of that submission, senior counsel for the Commissioner points to the use in the legislation of the words "any person" rather than the use of the word "the defendant" and submits that s 53(3) is apt to apply to the Commissioner because an order has been made by a Magistrate in relation to the Commissioner in a committal proceeding. 2. I accept entirely that the Commissioner was the subject of an order made by a Magistrate in a committal proceeding, but the question is one of interpretation, namely whether the term "any person" in Div 1 of Pt 5 of the Act applies to what I might call, informally, a third party, that is a person who is neither the prosecutor nor the defendant. 3. In support of the submission that the Commissioner is entitled to rely on s 53, senior counsel points to the fact that contextually the words "any person" are expressed broadly and only limited by that person having to be a person against whom an order has been made in any criminal proceedings, and that the order relates to them. Senior counsel also relies on the definitions in s 3 of the Act but, I must say, I am not certain that those definitions advance the question of interpretation, which the Court is called upon to consider. 4. Senior counsel accepts that the text may be of some ambiguity, and accepts that there are contextual implications which point in competing directions. Senior counsel accepts that the heading to Div 1, "Appeals by defendants", does point in a direction contrary to that for which he contends. However, he submits that accepting that the interpretation is potentially ambiguous, that the better view is to interpret the legislation expansively so that the words "any person against whom an order has been made" involves third parties. 5. Counsel for the defendant submits that on the proper interpretation of the Act, this Court has no jurisdiction to hear this appeal. He also draws attention to the textual implications of the Act. He commences with the structure of Pt 5 and points to the fact that, leaving aside Div 3, which contains miscellaneous provisions, Pt 5 is divided only into sections dealing with appeals by defendants or appeals by prosecutors, and when taken with the heading to Div 1 being "Appeals by defendants", there is strong contextual support for the proposition that s 53 applies only to an appeal by a defendant in proceedings in the Local Court. 6. He also draws attention to what he submits is a logical reason why the legislature would have used the term "any person" in Div 1. He submits that the use of "any person" combined with the other phrases, such as "any person who has been convicted or sentenced" or "any person against whom an order has been made" simply is one way (he accepts not the only way) in which the legislature could deal with the position of a defendant at different times in the proceedings. 7. Looking at ss 53(1) and (2), counsel submits that they clearly apply at the conclusion of proceedings and deal with the consequences of a conviction or some finding of guilt. Looking at s 53(3), counsel submits that what is there in issue is an order made in the course of the proceedings before the defendant has been convicted or a finding of guilt has been made, or before a sentence is imposed. He submits that it is plain that at all times in s 53, the legislation is referring to a defendant and does not encompass a third party. Previous Decisions 1. I have earlier said that Malpass AsJ in Chidgey held that, in similar circumstances, it was not open to the Commissioner to bring proceedings in this Court pursuant to the Act seeking to challenge a decision in the Local Court upon a subpoena. Of course, whilst I am not bound strictly as a matter of precedent by that decision, it is nevertheless, however, a decision entirely on point by a judicial officer sitting in this Division. 2. Malpass AsJ considered the textual implications of the section, and drew attention to s 35 of the Interpretation Act 1987 which, in short, provides that headings such as those that are set out in the Act, and to which I have made reference, are taken to be part of the Act. His Honour, having considered the objects of the Act and its context, accepted that it was open to make a submission that the terms of the Act were ambiguous. But he concluded that when regard was had to the objects of the Act, the context and the text, that the meaning was clear, and Pt 5 did not apply to third parties, but applied, so far as Div 1 was concerned, to defendants only. 3. His Honour also considered the history prior to the introduction of the Act. He pointed to the fact that the previous legislation, being the Justices Act 1902, and in particular s 104, did not confer any entitlement to challenge a decision of the Local Court on a third party, noting that those provisions applied expressly only to defendants and informants. His Honour noted that the Justices Act was repealed in July 2003 and replaced by the Act which I am considering. His Honour also noted that the Second Reading Speech of the Act recorded that the intention of the new bill was to "consolidate the existing law". His Honour then concluded that the Court did not have jurisdiction to determine the matter. 4. Senior counsel for the Commissioner has drawn my attention to two authorities, accepting as he did so that neither of the authorities deal directly with this point. I should, however, note them. The first is a decision of Brereton JA sitting in this division in a matter of Paulo v Commissioner of Police [2021] NSWSC 517. In those proceedings, in this Court, the plaintiff had been the subject of committal proceedings in the Local Court, and an issue arose about whether or not the prosecutor was required or obliged to provide to the defendant in the committal proceedings both transcripts of recorded interviews and the recordings themselves. 5. The defendant in the committal proceedings caused a subpoena to be issued addressed to the Commissioner for the production of the actual recordings of both interviews. The Local Court on the Commissioner's application set aside the subpoena as an abuse of process, concluded that to allow or to require production of the recordings would be to circumvent the provisions of s 283C(5) of the Criminal Procedure Act 1986. 6. At [13] and following, Brereton JA came to consider s 53(3) of the Act. The issue for consideration by his Honour was whether the decision of the Magistrate in the Local Court to set aside the subpoena was an order which had been made against the appellant and in relation to the appellant. I pause to recall that the subpoena was addressed to the Commissioner, who was not the defendant at the trial. The Commissioner was successful in the application made to the Local Court at that time, and it was the defendant who was appealing. 7. Ultimately, his Honour accepted that an order setting aside a subpoena was an order within the meaning of s 53(3)(a). He then said this at [16]: "Although it was held, by Malpass AsJ in Commissioner of Police v Chidgey, that 'any person' referred only to the defendant, and not to a subpoena recipient, this may be doubted; the contrary view is implicit in Jolley v DPP, but it was not argued. It need not be resolved in this case because the appellant was in any event the defendant in the Local Court." 1. Senior counsel for the Commissioner in this Court accepts that his Honour's remark was obiter dicta, and he accepts that the point was not argued before his Honour. Senior counsel also took the Court to the case cited by Brereton JA of Jolley v DPP [2020] NSWSC 1406, which is a decision of N Adams J in this Court. That was a decision where the appellant in this Court was the defendant in the proceedings below who was the applicant for the subpoena, and the defendant in this Court was the prosecutor in the proceedings below. 2. In that decision, the defendant (the Director of Public Prosecutions) conceded that error was established in the Local Court's decision and that the appeal should be allowed. I have carefully read the decision of N Adams J, and in particular her discussion of the provisions in Pt 5 of the Act. For my part, without meaning any disrespect to Brereton JA's decision, I am unable to see that it is inherent in that decision that s 53(3) applies to third parties, nor can I see that there is any decision of a kind which provides any guidance at all to this issue. 3. Finally, although not entirely decisive on this issue, I note that consequent upon the decision of Malpass AsJ in the proceedings involving Mr Chidgey, the Attorney General of New South Wales commenced proceedings in the Court of Criminal Appeal to challenge the decision of the Local Court on the basis that the Attorney General had a right of appeal against an interlocutory judgment or order pursuant to s 5F(2) of the Criminal Appeal Act 1912. 4. At [29] of the decision of N Adams J in Jolley, her Honour cites other proceedings which have been the subject of decisions by the Court of Criminal Appeal pursuant to s 5F on what seems to be the same subject matter. 5. Although I have not paused to review each of those other decisions, it falls to me then to determine, in light of the submissions which have been made, the cases to which I have been taken and the terms of the Act itself, as to whether or not the Commissioner, the plaintiff here, is entitled to bring proceedings seeking leave to appeal under s 53(3)(a) of the Act. Discernment 1. In my view, she is not. I have reached the conclusion that the text and context of the Act is clear. The Act in Pt 5 makes specific provision for appeals to this Court in criminal proceedings from the Local Court. It provides only for appeals by defendants or by prosecutors. It is accepted in this case that the Commissioner has neither of those characterisations. The headings within Pt 5 make it plain that that is the extent of the provisions in the Act. The use of the phrase, "any person", in Div 1 of the Act is apt to refer to a defendant, but at different stages of either committal or summary proceedings. 2. Section 52 and s 53(1) and (2) refer to summary proceedings in the Local Court, because the term, "any person", is limited by the phrase, "who has been convicted or sentenced by the Local Court". But of course, orders are made in committal proceedings. Those orders may be of different kinds. They may refer to interlocutory orders of a kind which may give rise to questions of procedural fairness in directions that are given. They may give rise to questions about the availability of documents either on subpoena or by way of an order made pursuant to legislation. They may give rise to matters such as whether an adjournment should be granted or whether or not, in committal proceedings in accordance with the Criminal Procedure Act, particular witnesses ought be the subject of cross-examination. 3. But there is a wide range of possible orders that might be made against a defendant or, at least, unfavourable to a defendant in the course of committal proceedings. In those circumstances, it seems to me clear that the purpose of s 53(3) of the Act refers to a defendant against whom an order has been made in relation to them in the course of criminal proceedings. I am well satisfied, having regard to the history of the provision and the text and context of it, that it is not open to a third party in criminal proceedings in the Local Court, such as the Commissioner or some other subpoena recipient, to use this provision to challenge the determination of a Magistrate sitting in the Local Court. 4. My conclusion in that respect is consistent with, and coherent with, the existence of other procedures open to a third party to challenge the decision of the Local Court. In other words, the fact that this section is not an available pathway for a person in the position of the Commissioner, who is not a defendant or a prosecutor, does not mean that there is no appeal pathway from an order in the Local Court. 5. In those circumstances, consistently with the decision of Malpass AsJ, I have determined that s 53 applies to defendants only and is not available to the Commissioner. Accordingly, this Court does not have the jurisdiction to hear and determine the Summons filed by the Commissioner on 31 March 2023. 6. It follows that I would make an order dismissing that summons. Orders 1. I make the following orders: 1. Summons dismissed. 2. Plaintiff to pay the defendant's costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 July 2023