IN THE COURT OF APPEAL [1996] QCA 229 SUPREME COURT …

IN THE COURT OF APPEAL

[1996] QCA 229

SUPREME COURT OF QUEENSLAND

Appeal No. 206 of 1995

Brisbane

[Von Snarski v. CJC]

BETWEEN:

BARRIE RANDALL VON SNARSKI

(Applicant)

AND:

CRIMINAL JUSTICE COMMISSION

(Respondent)

Pincus J.A. Davies J.A. McPherson J.A.

Judgment delivered 12/07/1996

Joint reasons for judgment of Pincus and Davies JJ.A; separate reasons of McPherson J.A. concurring as to the orders made.

APPEAL ALLOWED. ORDER OF MAGISTRATE MADE 25 JULY 1995 SET ASIDE. MATTER REMITTED TO THE MAGISTRATE TO DETERMINE THE APPLICATION FOR PRODUCTION OF DOCUMENTS ACCORDING TO LAW. NO ORDER AS TO COSTS.

CATCHWORDS:

REVIEW OF ORDER by magistrate refusing production of documents pursuant to a summons issued pursuant to s.83 Justices Act 1886 effect of s.99 Criminal Justice Act 1989 on refusal: Miller v. Miller (1978) 141 C.L.R. 269; Hilton v. Wells (1985) 157 C.L.R. 57 questions arising pursuant to the ordering of production of documents appropriately to be determined by magistrate.

Counsel:

Mr. M. D. Foley for the applicant Mr. A. J. Rafter for the respondent

Solicitors:

Foleys for the applicant Criminal Justice Commission for the respondent

Hearing Date:

29 May 1996

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 206 of 1995

Brisbane

Before

Pincus J.A. Davies J.A. McPherson J.A.

[Von Snarski v. CJC]

BETWEEN:

BARRIE RANDALL VON SNARSKI

(Applicant)

AND:

CRIMINAL JUSTICE COMMISSION

(Respondent)

JOINT REASONS FOR JUDGMENT - PINCUS AND DAVIES JJ.A. Judgment delivered the 12th day of July 1996

The applicant seeks review of an order by a magistrate refusing production of documents by the respondent Criminal Justice Commission pursuant to a summons issued pursuant to s.83 of the Justices Act in committal proceedings against the applicant in respect of an offence of carrying on the business of trafficking in a dangerous drug namely cannabis sativa. The learned Magistrate declined to make the order to produce the documents because he thought he was precluded from doing so by s.3.28 of the Criminal Justice Act 1989 and the decision of this Court in R. v. Le Gros and R. v. Jackson C.A. Nos. 330 and 331 of 1992. The applicant accepts that two hand guns and some notebooks also sought in the summons are not in the possession of the Commission.

Section 83 of the Justices Act provides:

"

(1) When justices have authority to summon any person as a witness they

shall have the like authority to require and compel the person to bring and produce for

the purposes of evidence all documents and writings in the person's possession or

power, and to proceed against the person in case of neglect or refusal so to do in the

same manner as in case of neglect or refusal to attend or refusal to be examined.

(2) However, no person shall be bound to produce any document or writing not specified or otherwise sufficiently described in the summons, or which the person would not be bound to produce upon a subpoena duces tecum in the Supreme Court."

Section 3.28 of the Criminal Justice Act is now renumbered 99 and is in the following terms:

"Subject to section 98, any information, record or thing in the possession of the commission may be utilised and dealt with in discharge of the functions and responsibilities of the commission or of the functions of any organizational unit of the commission, but otherwise shall not be made available for inspection by any person without the express authority in writing of the chairperson."

Section 98, which has no relevant application here, authorizes a commissioner to inspect any record or

thing in the Commission's custody.

Doubt has been expressed, in respect of provisions similar to s.99, as to whether a phrase such

as "any person" includes a court so as to preclude the production in evidence of any such record or thing

in the possession of the Commission. See Miller v. Miller (1978) 141 C.L.R. 269 at 277; Hilton v.

Wells (1985) 157 C.L.R. 57 at 87. In our view that doubt is well founded. We would construe s.99

as not prohibiting the tendering in evidence in Court and the subpoenaing for that purpose of documents

or other things in the possession of the Commission; that view is consistent with the construction given

to s.7(4) of the Telecommunications (Interception) Act 1979 (Cwth) in Hilton v. Wells (at 76), which

was applied in Sankyo Steamship Co. Ltd. v. Sumitomo Australia Ltd. (1992) 37 F.C.R. 353.

3 Le Gros and Jackson was not a case in which a subpoena duces tecum had issued on the Criminal Justice Commission. It was an appeal to this Court in which, on a directions hearing, the Crown, a party to the appeal, sought an intimation from this Court that the Commission disclose to it certain material in its possession, the Commission, which was not a party, having said that it would abide by an intimation of the Court. This Court refused to give any such intimation or to make any order which would give effect to that disclosure, relying on s.3.28. The nature of the application, which was made orally to the Court, can be seen from the following submissions of counsel for the Crown: "There is material in the possession of the Commission and what the Crown seeks to do is to access the statements which have been obtained ... ... ... but what we seek, in the circumstances, is an intimation from the Court that it would be appropriate for the Criminal Justice Commission to release the material to the parties to the appeal." That case did not, therefore, concern production to the Court, the question which arises here. The learned Magistrate was therefore wrong in refusing to order production of the documents on the ground that s.3.28 precluded him from doing so. Having rejected the contention that s.3.28 precluded him from ordering production of the documents, it may have been necessary for the learned Magistrate to have then embarked on consideration of the claim by the Commission that production of those documents would be injurious to the public interest and consequently upon a balancing exercise of the kind referred to by this Court in Criminal Justice Commission v. Collins, C.A. No. 33 of 1993, unreported, judgment delivered 18 February 1994. But a balancing exercise of that kind can be conducted only when it appears that both aspects of the public interest which have to be balanced, require consideration; in particular, in this case, that there are or are likely to be documents which contain material evidence: Alister v. The Queen (1984)

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