COMMISSIONER OF POLICE v HENRY [1991] NSWCA 60

COMMISSIONER OF POLICE v HENRY SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

SAMUELS JA, PRIESTLEY JA and HANDLEY JA 4 November 1991

[1991] NSWCA 60

Samuels JA, Priestley JA and Handley JA. This was an appeal by the Commissioner of Police against an order made by Badgery-Parker J in a criminal trial, which was then proceeding, in respect of a subpoena directed to the Commissioner to produce certain documents. The documents were produced, and his Honour ruled that they might be made available to Counsel and used for the purpose of cross-examining a witness. It was from that order that the appeal was brought to the Court of Appeal.

There was an initial question whether the Court of Appeal had any jurisdiction to entertain the appeal because of the provisions of s 17(1). With that problem in mind, the Court asked the Chief Justice to confer the mantle of a Court of Criminal Appeal upon the Court as then constituted and that was done. Hence, the Court sat in both capacities and heard the argument.

In the event, we rejected the submissions of the Solicitor General and the Commissioner failed, whether the proceeding was viewed as an appeal to the Court of Appeal or an application or appeal to the Court of Criminal Appeal. We dissolved an interim stay which Samuels JA had granted earlier in the day, and the criminal trial went on and was in due course concluded.

The one matter outstanding was the question of jurisdiction which, depending upon the way in which it was solved, had some potential effect upon the question of costs.

However, the Registrar of the Court of Appeal has now been informed by the Solicitor General, with the authority of Mr Terracini of counsel, who appeared for Mr Henry, that neither side desires reasons to be given upon the question of jurisdiction nor, indeed, any reasons, in addition to those which appear in the transcript of argument, for the Court's refusal of the relief which the Commissioner of Police sought. Furthermore, neither side is concerned about the question of costs, the Commissioner because whatever the solution to the problem of jurisdiction he would not be entitled to an order in the events which have happened, and Mr Henry because his costs of this proceeding were covered in fees provided by the Legal Aid Commission because of their involvement in the trial itself. Hence, the Court is informed that both parties are content to have the matter disposed of without having any reasons given by the Court.