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Supreme Court 20 June 2003

Finnie v Leggatt & Anor

[2003] NSWSC 549

Also reported as 141 A Crim R 523
Public order & justice offences
COMMITTAL PROCEEDINGS EVIDENCE PRIVILEGE WHETHER ABUSE OF PROCESS

Citation: Finnie v Leggatt & Anor [2003] NSWSC 549
Court: Supreme Court of New South Wales, Common Law Division
Date: 20 June 2003
Judge(s): Palmer J

Background

The plaintiff was a defendant in committal proceedings on charges of perverting the course of justice and perjury. The charges arose from allegations that he had produced a bogus medical report to a District Court judge in support of a bail application, falsely claiming he suffered from prostate cancer.

In preparing for the committal, the DPP obtained written statements from three doctors who had treated the plaintiff and from his former solicitor. Each statement was effectively blank: the doctors declined to provide any information on grounds of medical confidentiality, and the solicitor cited legal professional privilege pending written instructions from the plaintiff.

Faced with these empty statements, the DPP applied to the Magistrate for directions under s.48E(1) of the Justices Act 1902 (NSW) requiring each witness to attend and give oral evidence, and for a further direction under s.48AA(2)(b) for the attendance of a fifth doctor who had declined to provide any statement at all. The Magistrate granted all directions. The plaintiff appealed to the Supreme Court, arguing the process was an abuse of the committal proceedings.

  • Whether the DPP's use of s.48E(1) to compel attendance of witnesses who had given practically empty statements constituted an abuse of the committal process.
  • Whether the Magistrate had substantial reasons to issue the s.48E(1) directions, as required by the statute.
  • Whether the Magistrate made any error of law in granting the directions.
  • Whether the plaintiff's privilege claims (medical confidentiality and legal professional privilege) precluded the directions being made.

Decision

Palmer J granted leave to appeal under s.104(3) of the Justices Act, accepting that the question raised was an important matter of principle that had effectively halted the committal proceedings. However, his Honour dismissed the appeal on all grounds.

On the abuse of process argument, the court acknowledged the procedure was unusual. It is ordinarily a defendant, not the prosecution, who seeks a s.48E direction to cross-examine prosecution witnesses. Here, the prosecution sought to bring forward its own witnesses precisely so that the plaintiff's privilege claims could be tested and, if displaced, the witnesses could then give substantive evidence and be cross-examined by the plaintiff. The court found this did not constitute an abuse of process in the particular circumstances of the case.

On whether there were substantial reasons for the directions, the court accepted the Magistrate's reasoning. The witnesses were central to the prosecution case on charges that went directly to the integrity of court proceedings. The Magistrate had correctly identified that the interests of justice, including fairness to the prosecution, could justify s.48E directions, and that legal professional privilege may be displaced where the evidence is sought in relation to an alleged criminal offence.

Palmer J also noted that the DPP could arguably have proceeded more directly by way of s.48AA(2)(b) for all witnesses, rather than obtaining near-worthless statements and then applying under s.48E. However, the availability of a more direct route did not render the s.48E pathway illegitimate. The court confirmed that recourse to s.48E for the purpose sought by the DPP was within the scope of that provision. The question of whether privilege claims would ultimately succeed remained for the Magistrate to determine when the witnesses appeared.

Orders Made

  • The plaintiff's Summons dismissed.
  • Costs reserved (parties to be heard).

Key Takeaways

  • In dismissing the appeal, the Supreme Court confirmed that s.48E(1) of the Justices Act 1902 is not restricted to applications by defendants and can, in appropriate circumstances, be invoked by the prosecution to compel attendance of its own witnesses.
  • A Magistrate may have substantial reasons to direct witness attendance under s.48E even where those witnesses have provided statements containing no substantive information, particularly where privilege claims remain to be tested.
  • Legal professional privilege is not an absolute bar to a direction for attendance at committal proceedings; it may be capable of being displaced where the evidence relates to an alleged criminal offence by the client.
  • The availability of an alternative, more direct procedure under s.48AA(2)(b) does not automatically render a s.48E application impermissible; both pathways may legitimately be available on the same facts.
  • No error of law was established merely because the prosecution chose a circuitous procedural route, provided that route remained within the scope of the relevant statutory provision.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 319, 327
- Evidence Act 1995 (NSW), s 126D
- Justices Act 1902 (NSW), ss 48AA(2)(b), 48E(1), 104(3)
- Supreme Court Act 1970 (NSW), s 69(1)

Cases:
- Barton v R (1980) 147 CLR 75
- Moss v Brown [1979] 1 NSWLR 114
- R v Bell; ex parte Lees (1980) 146 CLR 141