Reported Decision : 141 A Crim R 523 New South Wales Supreme Court CITATION : Finnie v Leggatt & Anor [2003] NSWSC 549 HEARING DATE(S) : 19 June, 2003 JUDGMENT DATE : 20 June 2003 JURISDICTION: Common Law Division JUDGMENT OF : Palmer J DECISION : Appeal dismissed. CATCHWORDS : COMMITTAL PROCEEDINGS - EVIDENCE - PRIVILEGE - Appeal from Magistrate's decision in committal proceedings - prosecution obtained witness statements from defendant's doctors and solicitor for use in committal proceedings - statements gave no information because of defendant's claim for privilege - prosecution sought directions under s.48E Justices Act for attendance of witnesses to give oral evidence - whether abuse of process - whether substantial reasons for direction - whether error of law. HELD: In the unusual circumstances of the case, no abuse of process, no error of law shown. Crimes Act 1900 (NSW) - s.319, LEGISLATION CITED : Evidence Act 1995 (NSW) - s.126D Justices Act 1902 (NSW) - s.48AA(2)(b), s.48E(1), s.104(3) Supreme Court Act 1970 (NSW) - s.69(1) Barton v R (1980) 147 CLR 75 CASES CITED : Moss v Brown [1979] 1 NSWLR 114 R v Bell; ex parte Lees (1980) 146 CLR 141 Sydney Thomas Finnie - Plaintiff PARTIES : Stewart Leggatt - First Defendant Deborah Sweeney - Second Defendant FILE NUMBER(S) : SC 11491/02 R.A. Bonnici - Plaintiff COUNSEL : P.I. Lakatos - First Defendant Submitting appearance - Second Defendant S. Moran & Co - Plaintiff SOLICITORS : Office of the Director of Public Prosecutions - First Defendant I.V. Knight, Crown Solicitor - Second Defendant LOWER COURT Local Court JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT Ms D. Sweeney LCM JUDICIAL OFFICER : Introduction 1 The Plaintiff, Mr Finnie, is the defendant in committal proceedings which have not yet concluded. On 1 May 2002, the Second Defendant, who is the Magistrate hearing the committal proceedings, gave a direction under s.48E(1) and s.48AA(2)(b) of the Justices Act 1902 (NSW) for the attendance at the committal of certain witnesses. The application for those orders was made by the First Defendant, the Director of Public Prosecutions ("the DPP"), and was resisted by the Plaintiff. 2 The Plaintiff's Summons seeks relief by way of mandamus and declarations as to the validity of those orders, but in the course of his submissions Mr Bonnici, who appears for the Plaintiff, sought leave to appeal pursuant to s.104(3) of the Justices Act . That subsection provides that a defendant or informant in committal proceedings may appeal to the Supreme Court on a ground that involves a question of law alone, but only with leave of the Court. Mr Lakatos, who appears for the DPP, did not oppose leave being granted. 3 The question of law raised by the Plaintiff in this proceeding is, in my view, an important one involving a matter of principle. The committal proceedings have come to a halt until the question is determined and the witnesses in respect of whom the learned Magistrate made the direction under s.48E(1) have not yet been called. In those circumstances, I think it appropriate to grant leave under s.104(3) to bring this appeal and I do so accordingly. Background 4 In November 2000 the Plaintiff was in custody after having pleaded guilty to a number of serious fraud charges. On 27 November 2000, when the Plaintiff appeared for sentencing, the Plaintiff's solicitor, Mr Gregory Meakin, made a bail application on his behalf to Coorey DCJ. One of the grounds of the application was that the Plaintiff was suffering from prostate cancer and could not obtain proper medical treatment for that condition while he was in gaol. The Plaintiff gave sworn evidence that he had been diagnosed with prostate cancer in 1995 and had been treated by a certain doctor at Royal North Shore Hospital. 5 The application was adjourned to 30 November 2000. On that day, the prison doctor, Dr Varga, gave evidence, based on his examination of the Plaintiff, that the Plaintiff did not have prostate cancer. Mr Meakin then undertook to produce to the Court medical evidence in order to support the Plaintiff's claim as to his condition and the proceedings were further adjourned. 6 On 7 December 2000, a letter was sent by facsimile to the DPP by Mr Meakin to which was attached a report from a "Dr W.H. Gorvy" dated 8 June 1995. That report gave particulars of the Plaintiff's medical condition and as a result of that report the Plaintiff was released on bail. 7 The DPP subsequently came into possession of information which raises a strong prima facie case that there is no such person as "Dr W.H. Gorvy" and that the medical report in his name provided to Coorey DCJ is bogus. 8 The Plaintiff has been charged under s.319 Crimes Act 1900 (NSW) with one count of perverting the course of justice. Later an additional charge of perjury under s.327 Crimes Act was laid. 9 The DPP set about collecting written statements for the purpose of tender at the Plaintiff's committal on these charges. The DPP's solicitor, Mr Denman, obtained statements from Dr George Gluck, a general practitioner who treated the Plaintiff between 1994 and 1996, Dr John Gunning, a consultant cardiologist who had treated the Plaintiff in 1995, Dr Daphne Fitzroy-Mendis, a general practitioner who had treated the Plaintiff up to 2002, and from Mr Meakin. 10 Each of the statements from the medical practitioners was to the effect that the Plaintiff had been a patient during a specified time but that, "due to doctor/patient confidentiality" , the doctor was unable to disclose in the statement any information concerning the Plaintiff. The statement from Mr Meakin was to the effect that he was the solicitor for the Plaintiff, but was unable to provide any further information "until such time as I receive written instructions from (the Plaintiff) in terms of legal professional privilege" . 11 On 1 May 2002, Mr Denman made an application to the Second Defendant for directions under s.48E(1) of the Justices Act for the attendance to give evidence of Drs Gluck, Gunning and Fitzroy-Mendis and Mr Meakin. Mr Denman also sought an order or direction under s.48AA(2)(b) that evidence be given by the Plaintiff's present doctor, Dr Vago, who had not provided a witness statement but had indicated that he was willing to attend Court and give evidence if required to do so. The learned Magistrate made the directions under s.48E(1) and s.48AA(2)(b), as sought. The judgment of the Magistrate 12 In the course of her judgment the learned Magistrate noted the principal submission of the Plaintiff in opposition to the DPP's application under s.48E as "the DPP cannot use the committal proceedings to acquire evidence, that that is a misuse and an abuse of the committal process" . That submission has been advanced by Mr Bonnici with considerable vigour before me as the Plaintiff's main proposition in support of the appeal and I will return to it shortly. 13 The learned Magistrate's reasons for the directions which she gave are as follows: "Mr Barber has referred me to the decision of the Supreme Court in Hanna & Kearney v The DPP , a decision of the Supreme Court in 1998 of Studdert J and particularly para 4 of his Honours reasons there which say "On any application under s 48E the fundamental objective of committal proceedings must be borne in mind, namely the objective of facilitating a fair trial in the event that the person charged is committed and later stands trial. This may mean that there are substantial reasons for requiring a witness for cross-examination for a proper understanding of the nature of the prosecution case or for an understanding of the basis of a relevant opinion held by a witness. These are instances only and are not exhaustive" and it's fairly clear that the authorities and Losurdo's case have made it clear that a fair trial is one reason why orders can be made under s 48E. But as I read that part of Studdert J's reasons, and as I understand the decision in Losurdo , a fair trial is not limited to a fair trial for the defendant. Fairness is not also, as a matter of law, required to apply to the prosecution. In this case there are several witnesses which the DPP's submissions satisfy me are important witnesses to the prosecution case. Each of those witnesses has made a claim for privilege but, apart from Mr Meakin, has indicated a willingness to give evidence if required to do so at court. Mr Meakin has claimed solicitor/client privilege. But as the DPP submits and as the law is, there are situations in which privilege between a solicitor and client can be set aside if it would provide evidence of a criminal offence being committed, which is what the prosecution alleges here, and there appears to be some evidence in the evidence provided on this application to support that allegation. It seems to me that there are substantial reasons in the interests of justice why those witnesses should be required to attend to give oral evidence. This is an unusual situation where each of those witnesses who can give evidence and can give important evidence has claimed privilege and it seems to me that that falls within the test in s. 48E. I am satisfied that there are substantial reasons in the interests of justice why the witnesses, the solicitor Mr Meakin, Dr Fitzroy-Mendis, Dr Gunning and Dr Gluck should attend, and I make that order. In respect of Dr Vago who has indicated that he will not provide a statement because of his current patient/doctor relationship with the defendant, I am satisfied that I should make an order under s 48AA of the Justices Act that Dr Vago should be required to attend to give evidence in the committal proceedings without a statement being obtained from him beforehand because I am satisfied that a statement cannot be obtained from him given his indication and his current relationship with the defendant. So I make that order that those five witnesses should attend." The relevant sections of the Justices Act 14 Section 48AA(1) relevantly provides: "(1) Evidence for the prosecution in any committal proceedings must (subject to this section) be given by means of written statements which are admissible as evidence under section 48A. (2) The evidence of a person need not be given by means of such a statement if the Justice or Justices is or are satisfied, on the application of the informant, that: (a) the statement was prepared but a copy of the statement could not reasonably be served on the defendant, (b) any other requirement of this Subdivision relating to the statement could not reasonably be complied with, or (c) the evidence is additional evidence of a person whose statement has already been admitted in evidence and a further written statement is not appropriate." Section 48A relevantly provides: "(1) Notwithstanding any other provision of this Act, but subject to this Subdivision, a written statement by any person is, if tendered by the informant, admissible in committal proceedings as evidence to the same extent as if it were oral evidence to the like effect given in those proceedings by that person. (2) Any document or other thing identified in any written statement admitted as evidence under this section shall, if the document or other thing is produced as an exhibit in the committal proceedings, be treated as if it had been identified before the Justice or Justices by the person who made the statement. (3) A written statement that is inadmissible as evidence under this section by virtue of any provision of this Subdivision may nevertheless be admitted as evidence in accordance with any rule or law of evidence, as if this Subdivision were not in force." Section 48E relevantly provides: "(1) For the purposes of committal proceedings, the Justice or Justices may give a direction requiring the attendance at the proceedings of a person who has made a written statement for the purposes of this Subdivision. The direction may be given on the application of the defendant or informant or on the motion of the Justice or Justices. (1A) The Justice or Justices must give the direction if an application is made by the defendant or the informant and the other party consents to the direction being given. (2) In any other circumstance, the Justice or Justices may give the direction only if: (a) in the case of a witness in proceedings that relate to an offence involving violence who is the alleged victim of the offence – the Justice or Justices are of the opinion that there are special reasons why, in the interests of justice, the witness should attend to give oral evidence, or (b) in any other case – the Justice or Justices are of the opinion that there are substantial reasons why, in the interests of justice, the witness should attend to give oral evidence. (3) The Justice or Justices must not give the direction if the written statement has already been admitted as evidence. …" Whether abuse of process 15 Mr Bonnici's primary submission is that the learned Magistrate "erred in law in making orders for the attendance of witnesses in order that the prosecution could further investigate their case against the Plaintiff. This is beyond the scope of the lawful use of s.48E of the Justices Act ." 16 In support of this submission Mr Bonnici referred to a number of authorities as to the nature and purpose of committal proceedings. In Moss v Brown [1979] 1 NSWLR 114, the Court of Appeal, in a joint judgment, said at 125 that the nature and purpose of a committal proceeding "is to receive, examine and permit the testing of, evidence introduced by the prosecutor before the inquiring magistrate, in order to determine whether there is sufficient evidence to warrant the person charged being put on trial and, if not, to discharge that person". That statement was approved by the High Court in Barton v R (1980) 147 CLR 75, at 98. 17 Mr Bonnici submits that the DPP's application for directions under s.48E(1) was an abuse of process because the DPP was, by that process, seeking the Court's assistance in what he described as a 'fishing exercise', that is, an endeavour to obtain some evidence to support the charges against the Plaintiff which the DPP lacked. He submitted that it was not within the purpose and scope of s.48E that it be used to bolster the prosecution's case. 18 I am unable to accept Mr Bonnici's primary submission. In my view, the directions sought under s.48E(1) for the attendance of witnesses were not sought by the DPP by way of a 'fishing exercise' or for the purpose of investigation, but rather as the first step in placing before the Court prosecution evidence which was, if it were ultimately allowed to be given, clearly relevant to the issues arising on the two charges against the Plaintiff. If the Court ruled that the Plaintiff's privilege claims could not be maintained in respect of the evidence of the doctors, then their evidence could be of critical importance in assessing the strength of the prosecution's case on the charge of perverting the course of justice and on the charge of perjury. Evidence from Mr Meakin, if it were ultimately not to be the subject of legal professional privilege likewise could be of critical importance as to how he came to be in possession of the alleged bogus medical report which he sent to the DPP. 19 It is true that until the evidence of the doctors and of Mr Meakin was actually given in Court, the prosecution would not know exactly what they were going to say, as would have been the case had those witnesses provided full witness statements uninhibited by the Plaintiff's claims to privilege. But that does not mean that the evidence of those witnesses which the prosecution sought to tender by recourse to s.48E was part of some investigative process or was in the nature of a 'fishing exercise'. The prosecution was not seeking the evidence of these witnesses for the purpose of deciding whether or not it would use that evidence in the committal proceedings. The prosecution was seeking to adduce the evidence in the committal proceedings itself, whatever that evidence was, for better or for worse. If the evidence turned out to be favourable to the Plaintiff, the Plaintiff would doubtless refrain from cross examination and the prosecution's case would be so much the weaker. On the other hand, if the evidence turned out favourable to the prosecution, the Plaintiff could have exercised his right to cross examination. Either way, what the prosecution was seeking to achieve was to lay out in the committal proceedings all of the evidence which it could obtain, for examination and testing by the Plaintiff so that the Court might decide whether the Plaintiff should be committed for trial or discharged. 20 For these reasons, in my opinion, the Plaintiff fails in his attack on the DPP's application and on the orders made by the Magistrate under s.48E(1) as an abuse of process and as beyond the permitted scope of that section. Whether substantial reasons for the directions 21 The Plaintiff's next submission is that the learned Magistrate erred in law in holding that, for the purpose of s.48E(2)(b) there were substantial reasons why, in the interests of justice, the witnesses should attend to give oral evidence. Mr Bonnici contends that the learned Magistrate failed to consider properly "the aspects of privilege" in relation to each witness before she made a direction that each witness attend to give evidence. 22 I am unable to accept this submission. There was evidence before the Magistrate which was capable of supporting the DPP's submission that privilege, whether claimed in respect of the evidence to be given by the doctors or by the Plaintiff's solicitor, could not be invoked by the Plaintiff because the communications sought to be protected were made in the furtherance of a crime: see e.g. s.126D Evidence Act 1995 (NSW); R v Bell; ex parte Lees (1980) 146 CLR 141. Whether that evidence was then sufficient to warrant a successful invocation by the DPP of s.126D or the common law principle was not the question before the learned Magistrate at the time she made the directions under s.48E. I do not read her reasons as deciding anything more than that the witnesses should attend to give oral evidence for the purpose of the Court deciding, on such further evidence and submissions as may be made on the later occasion, whether the prosecution's attack on the Plaintiff's privilege claim under s.126D or under the common law was successful. For example, if a doctor gave evidence that he had had no communication whatsoever with the Plaintiff for a number of years prior to the commission of the alleged offences, it would be difficult to see how any communication between the doctor and the Plaintiff which had taken place years before the alleged offences could be a communication made in furtherance of the alleged offences. 23 There was, however, evidence before the learned Magistrate sufficient to support the allegation, on a prima facie basis, that the Plaintiff had committed the offences with which he had been charged and there was, at the least, a possibility that there had been communications between the Plaintiff and the witnesses which, unknown perhaps to the witnesses, were made in furtherance of the Plaintiff's alleged criminal offences. 24 The application before the learned Magistrate was a strange one, as she herself acknowledged. It is usually the defendant in committal proceedings who seeks an order under s.48E in order to permit cross examination of the prosecution's witnesses. Here, the prosecution itself made the application to bring before the court its own witnesses so that the Plaintiff's claims to privilege could be challenged and, if successfully challenged, so that the witnesses could then give their evidence and be cross examined by the Plaintiff. 25 As Mr Lakatos conceded in his characteristically clear and helpful argument, it might well be that the object which the prosecution sought to achieve could have been more directly achieved by an application under s.48AA(2)(b) than by the circuitous means of obtaining and serving a practically useless witness statement and then making an application for the attendance of the witness under s.48E. An application under s.48AA(2)(b) was made in the case of Dr Vago, who declined to give any witness statement and the Magistrate made the order sought. The Plaintiff has made no submission that such order was made without jurisdiction or by reason of an error of law. 26 Nevertheless, I accept Mr Lakatos' submission that because there is a direct means via s.48AA(2)(b) of obtaining the attendance of the witnesses in the circumstances of this particular case, it does not follow that there can be no other means of achieving the same object under the provisions of Part 7A of the Justices Act . Circuitous though it is, in my opinion, recourse to s.48E for the purpose desired by the DPP was legitimate and within the scope of that section. Conclusion 27 For these reasons, in my opinion, the Plaintiff has not shown that the learned Magistrate either exceeded or else failed to exercise the jurisdiction conferred on the Court under s.48E such as would require this Court to make an order in the nature of mandamus under s.69(1) Supreme Court Act 1970 (NSW). Further, I am not persuaded that the learned Magistrate committed any error of law in holding that there were substantial reasons for the making of directions under s.48E. As I have noted, whether the Plaintiff's claim that the witnesses' evidence is the subject of privilege succeeds or fail will be determined when the witnesses appear before the learned Magistrate. 28 In the result, therefore, the Plaintiff's Summons is dismissed. I will hear the parties as to costs. – oOo – Last Modified: 06/20/2003 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.