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CLARKSON v DIRECTOR OF PUBLIC PROSECUTIONS - [1990] VR 745

SUPREME COURT OF VICTORIA CROCKETT, MURPHY and NATHAN JJ

15 December 1989

Criminal law -- -- Appeals -- Nature of proceedings in Practice Court -- When appeal from decision of Practice Court lies to Full Court -- Certiorari -- Obligation on prosecutor to make available material which would assist defence case -- Discovery in criminal cases -- Act 1958 (No 6231), Pt VI -- Supreme Court Act 1986 (No 110), s10, s14 -- Rules of Supreme Court, O.29, O.32.

The appellant sought leave to appeal from orders made in the Practice Court dismissing an originating motion seeking judicial review in the nature of certiorari and also striking out an ancillary summons for habeas corpus. The appellant claimed that at the time of his trial in the County Court relevant material which might have led to his acquittal was in the possession or power of the Crown prosecutor, and that despite the appellant's request, it was not produced to him by the prosecutor. The appellant also sought order for discovery.

Held, allowing the appeal: (1) The appellant's originating motion seeking judicial review in the nature of certiorari for an order directed to the County Court judge to bring up for quashing convictions and the consequent sentences passed upon him following trial on indictment in the County Court, was a criminal matter or proceeding. R v Fletcher (1876) 2 QBD 43; Ex parte Alice Woodhall (1888) 20 QBD 832; Ex parte Schofield [1891] 2 QB 428; R v Watt; Ex parte Slade [1912] VLR 225; R v Garrett; Ex parte Sharp [1917] 2 KB 99; Willamson v Director of Penal Ser- vices[1959] VLR 205; Bonalumi v Secretary of State [1985] QB 675 and R v Clarkson[1987] VR 962, referred to. (2) In the present case an appeal from the determination of the Practice Court judge dismissing the appellant's originat- ing motion does not lie under Pt VI of the Crimes Act 1958. Accordingly, the appellant is given a right to appeal to the Full Court pursuant to s10(2) of the Supreme Court Act 1986. Boehm v Director of Public Prosecutions [1990] VR 494, followed and applied. R v Kean and Mills [1985] VR 255, referred to. (3) It is arguable that an assumed failure of the prosecution to provide relevant material to the appellant at his trial con- stituted a denial of natural justice and so rendered his trial a nullity, as being in excess of jurisdiction. If these conse- quences were established then certiorari would go to an inferior tribunal, if not to the County Court, in which the con- victions were entered after trial on indictment. Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 and R v Leyland Justices; Ex parte Hawthorn [1979] QB 283, considered. R v Inhabitants of Seton (1797) 7 Term Rep 372; 101 ER 1027; R v Inhabitants of Pennegoes and Town of Mackynlleith (1822) 1 B. and C.142; 107 ER 53; R (Giant's Causeway and Tramways Company) v Justices of Co An- trim [1895] 2 IR (QB and Ex Div) 603; R (Williams Hastings) v Chairman and Justices of Galway[1906] 2 IR (KB) 499; Ex parte Williams (1934) 51 CLR 545; R v Judge McNab; Ex parte the Acting Attorney-General (unreported, 17 August 1977) and R v Wright and Pope [1980] VR 41, referred to. (4) Similar considerations as apply in the case of the wrongful failure of the prosecutor to call a witness to give apply when it is a question of the disclosure to the defence of documentary material in the possession or power of the Crown prosecutor, which material would tend to assist the defence case. The deliberate withholding of such material could well constitute a miscarriage of justice when viewed against the conduct of the whole trial and so lead to the set- ting aside of the conviction. Page 2

R v Lucas [1973] VR 693; R v Eastwood and Boland [1973] VR 709; Richardson v R (1974) 131 CLR 116; 3 ALR 115; R v Hebaiter [1981] VR 367; Whitehorn v R (1983) 152 CLR 657; 49 ALR 448 and R v Apostilides (1984)154 CLR 563; 53 ALR 445, referred to. (5) Were the proceedings civil, discovery of a general nature but directed to the issue in question might be ordered; but, the proceedings being criminal, the application for discovery must be refused. R v Hamiguchi [1908] QSR 224; R v Associated Northern Collieries (1910) 11 CLR. 738; R v Adams [1965] VR 563; Stewart v Miller [1979] 2 NSWLR 128 and G Breschi and Son Pty Ltd v A F T Ltd [1988] VR 109, referred to:

Appeal This was an application for leave to appeal from an order made in the Practice Court granting an application to strike out an originating motion issued by the appellant seeking judicial review in the nature of certiorari and also striking out an ancillary summons for habeas corpus. The facts are stated in the judgment of Murphy J. The applicant in person.

J D McArdle for the respondent.

Crockett J:

Murphy J will deliver the first judgment.

Murphy J.:

This was an application for leave to appeal from an order made in the Practice Court granting an application to strike out an originating motion issued by the appellant seeking judicial review in the nature of certiorari and also striking out an ancillary summons for habeas corpus, with costs. At the same time before us an application was made under r209 of the Criminal Appeals and Procedures Rules 1988, Ch VI following the refusal by the registrar to grant the appellant's application for leave to appeal out of time from his con- victions before the County Court, recorded following his trial there on indictment in February 1987. This latter matter was really advanced as an alternative to the relief sought by way of appeal from the orders made by the learned judge in the Practice Court dismissing the said motion and summons. A preliminary issue for determination of importance in different ways was raised. Were the proceedings in the Practice Court criminal proceedings? If so: (a) did the appellant have a right to appeal from the order to the Full Court; and (b) did the Practice Court judge have the power to award costs against the appellant; and (c) does the appellant have a right to discovery as sought in the originating motion? It might also be asked whether the order was interlocutory so as to require the leave of the court to appeal, and finally, in any event was there merit in the appeal? The background in which these matters arise is set out in some detail in R v Clarkson [1987] VR 962, at pp 964-7, and I do not intend to repeat them. In the Practice Court, the learned judge took the view that the proceedings were "heard in the civil jurisdiction" but the appellant before us submitted that his Honour was, he thought, "taken on the hop", and in fact it does not appear that a great deal of debate on this issue occurred. His Honour on dismissing the motion awarded costs against the appellant. I deal first with the issue whether the originating motion and the summons for habeas corpus were criminal proceedings. I am satisfied, having considered the authorities, that the appellant's originating motion seeking judicial review in the nature of certiorari (O.56) for an order directed to the County Court judge to bring up for quashing convictions and the consequent sentences passed upon him following trial on indictment in the County Court, was a criminal matter or pro- ceeding. Page 3

The importance of such a conclusion when s42 of the Supreme Court Act 1958 was in force was that no appeal lay to this Full Court from the determination of"Any single Judge sitting in Court" in a criminal matter: see Williamson v Di- rector of Penal Services [1959] VLR 205, at p207. In that case the Full Court, comprising Herring CJ, Gavan Duffy and Adam JJ, held that no appeal lay to the Full Court from a refusal by a judge in chambers of an application for a writ of habeas corpus in a criminal matter. A good deal of attention in the reasons for judgment delivered by Adam J, in which the other members of the court concurred, is directed to the issue whether a decision in chambers differed from a deci- sion in court, but any possible distinction between the two has now been abolished by s4(1) of the Supreme Court Act 1986. Williamson's Case also decides that the determination of the issue whether or not an application for habeas corpus is a criminal matter depends upon "the nature and character of the proceeding in which habeas corpus is sought": see Vis- count Simon LC, Amand v Home Secretary [1943] AC 147, at p156. These answer"the test whether it is or is not a criminal matter": see Williamson's Case, at p206. Adam J continued: " It is difficult to imagine a clearer case of a criminal matter than an application for a writ of habeas corpus to secure the release of a prisoner under sentence." It had already been held in England in earlier cases that s47 of the Judicature Act, referring as it did to "a criminal cause or matter" should be given "the widest possible interpretation": see Lord Esher MR in Ex parte Alice Woodhall (1888) 20 QBD 832, at p835. In that case the Master of the Rolls relied in particular upon R v Fletcher (1876) 2 QBD 43 in which an appeal was made from a decision of the Queen's Bench Division discharging a rule for a certiorari to bring up for the purpose of quashing a summary conviction by justices. The Court of Appeal held that the contemplated appeal was from a judgment of the High Court in a criminal matter within the last clause of s47, and that no appeal lay. In Alice Woodhall the Court of Appeal was considering whether an appeal lay from the decision in the Queen's Bench Division refusing an application for a writ of habeas corpus, and Lord Esher said, at pp836-7: "I think that the clause of s47 in question applies to a decision by way of judicial determination of any question raised in or with regard to pro- ceedings, the subject-matter of which is criminal, at whatever stage of the proceedings the question arises ... If the pro- ceeding before the magistrate was a proceeding the subject matter of which was criminal, then the application in the Queen's Bench Division for the issue of a writ of habeas corpus, which if issued would enable the applicant to escape from the consequences of the proceeding before the magistrate, was a proceeding the subject-matter of which was criminal. It follows that this Court has no jurisdiction to hear the appeal . . . If such subject-matter was not criminal this Court would have jurisdiction." Lindley LJ: and Bowen LJ delivered short reasons expressing no doubt but that the matter "was criminal from first to last". R v Fletcher (1876) 2 QBD 43 concerned the same issue, arising upon an appeal from the Queen's Bench Division discharging a rule for a certiorari to bring up a conviction for the purpose of quashing it for want of jurisdiction. It is not unlike the present case. Upon objection taken that the Court of Appeal had no jurisdiction, it was argued by the appellant that it was not a criminal proceeding but a mere collateral proceeding in the nature of civil process being part of the peculiar jurisdiction of the Queen's Bench Division in exercising control over justices. It was true - so the argument went - that OLXII said that nothing in the rules should affect the practice or procedure of the court in criminal proceedings, but the rules could not control or take away the rights given by the statute to appeal from any judgment or order of the High Court. The court (comprising Mellish LJ, Brett and Amphlett JJA) unanimously found that the appeal was being sought con- cerning a proceeding in a criminal matter. Mellish LJ, at p45, relied also upon s19, which said "that the practice in criminal cases in the Court of Appeal shall be the same as before the Act". It may be noted that more recently in Bonalumi v Secretary of State [1985] QB 675 the Court of Appeal applied Ex parte Alice Woodhall and held that an order made pursuant to a summons issued by the Secretary of State seeking to enable the latter to inspect and copy accounts relating to Bonalumi, which had been requested by the Government of Sweden as assistance for the prosecution of Bonalumi in Sweden for a criminal offence, was an order in a criminal cause or matter and that therefore the Court of Appeal had no jurisdiction to hear the appeal. The same ruling was given on an attempted appeal from the refusal of the Queen's Bench Division to grant mandamus, (Ex parte Schofield [1891] 2 QB 428) and from the refusal of the King's Bench Division to grant prohibition: R v Garrett; Ex parte Sharf [1917] 2 KB 99. In Victoria in R v Watt; Ex parte Slade [1912] VLR 225, at pp241-2, Cussen J said with his customary care: "The first question I shall deal with is the question whether in this case there is any appeal . . . In some of the cases it will be found that the decision turns on the question whether the principal matter which is then directly under consideration is itself a Page 4

criminal or civil matter ... In other cases the proceeding directly under consideration may be said, in some respects, to be equivocal. Such are cases of habeas corpus, mandamus, certiorari and matters of that kind. In these cases you may have to look back to see whether the matter directly under consideration is not merely subordinate or ancillary to some prior and more substantial matter, and whether the decision one way or the other, in the matter directly under consideration, does or does not affect the proceedings on, or in connection with, the other and more substantial matter. If you find it does affect the prior matter, whether a proceeding in Court or not, which itself is criminal, then it may be held, and it has been held in many cases, that the proceeding directly under consideration is a criminal matter. There are numerous examples of that class of case in the books, and I think it is that class of case which gives rise to the most difficulty. In both classes it is the substance and not the form which determines the ultimate decision. If, for example, you have an application for habeas corpus, you cannot determine straight off, simply on learning that fact, whether the matter is criminal or not. If you find that that habeas corpus relates to the imprisonment of some person who is in prison for some offence, then it would probably be held that it is a criminal matter, and if it relates to the custody of a child, apart from any question of imprisonment in the ordinary sense, it may be held to be a civil matter. The same considerations will determine cases in connection with many applications for mandamus, certiorari, and so on." I have accordingly no doubt but that the appellant's proceeding in the Practice Court in the circumstances of the present case seeking by his originating motion, certiorari, and by his ancillary summons, habeas corpus, were each proceedings of a criminal nature, and themselves criminal matters. Unless the law has changed since the decisions in the cases to which I have referred, there is no appeal to the Full Court from an order made by a single judge of the court in such a criminal proceeding. The Supreme Court Act has, however, undergone amendment, and in particular s42 has undergone change. This court said in R v Kean and Mills [1985] VR 255, at p257: "The essence of s42 in its original form is that it was an enabling section." Following its amendment by Act No 10075 which came into force on 15 May 1984, the Full Court in Kean and Mills held that Pt VI of the Crimes Act 1958 prescribed a procedure for all appeals from criminal cases tried before a jury and that that procedure was exhaustive. The amended section did not give a new right of appeal in cases where such a right was already given by Pt VI of the Crimes Act 1958: see [1985] VR, at p257. The Supreme Court Act 1986, to which I have referred, Act No 110, came into force on 1 January 1987 and s10, s11 and s14(3) of that Act contained provisions relevant to this issue whether an appeal to the court lies in the circumstances with which we are here concerned. S10 of the 1986 Act reads: "10. (1) The Court constituted by a Judge may hear and determine all matters, whether civil or criminal, not required by or under this or any other Act or the Rules to be heard and determined by the Full Court. "(2) Unless otherwise expressly provided by this or any other Act, an appeal lies to the Full Court from any determina- tion of the Court constituted by a Judge." S14(3) reads: "Except as provided in Part VI of the Crimes Act 1958, an appeal does not lie from a determination of the Court consti- tuted by a Judge made on or in relation to the trial or proposed tria! of a person on indictment or presentment. " I have examined the statutory origins of the present sections and the earlier authorities concerning them in order to see whether they assist in construing the present provisions of the Act. If the matter was one untouched by current authority, I would, I believe, have been inclined to the view that an appeal did not lie to this court from the instant determination of the Practice Court judge "in relation to the trial" of the appellant. However, it is unnecessary for me to decide the matter for this court in Boehm v Director of Public Prosecutions [1990] VR 494 considered the construction to be given to s10, s11 and s14(3) of the 1986 Act. Although concluding that the appeal in that case was not competent, the court construed s14 to mean that an appeal does not lie to the Full Court from any determination of a single judge on or in relation to a trial or proposed trial, but only if an appeal from that determination does lie to the Court of Criminal Ap- peal under Pt VI of the Crimes Act 1958. It decided, at p. 502 that: ". . . from all determinations of a single judge of this court from which an appeal does not lie under Pt VI of the Crimes Act, an appeal to the Full Court lies under s10(2) except for determinations which the Supreme Court Act or another Act provides shall be without appeal and except, perhaps, in the case of a determination from which some other specific right of appeal is provided. " I am of the opinion that, in the present case, an appeal from the determination of the learned Practice Court judge dis- missing the appellant's originating motion does not lie under Pt VI of the Crimes Act 1958. Accordingly, on the author- Page 5

ity Boehm, which this court as presently constituted, of course, follows, the appellant is given a right to appeal to this court pursuant to s10(2) of the Supreme Court Act 1986. I turn then to the merits of the appeal from the decision of the learned Practice Court judge striking out the originating motion seeking judicial review in the nature of certiorari and also the summons for habeas corpus. I am of the opinion, for the reasons stated below, that it is at least arguable that the appellant was entitled to have the relief which he sought, and that his motion and summons should not have been struck out at the outset. On the assumptions that the court must make, it is at least arguable that the appellant would be able to show that rele- vant material was in the possession or power of the Crown prosecutor at the time of the hearing of the presentment, and that despite the appellant's request, it was not produced to him by the prosecutor. The materiality of this documentary material is to be assumed. The appellant's assertion is that it would certainly have led to his acquittal. The material has now been produced to the appellant by the police pursuant to Freedom of Information Act requests which were directed, I believe, to the Director of Public Prosecutions. We have been referred to the material in the shape of exhibits E, F, G and H, but only, as I understand the matter, in order to be able to see that the appellant's motion and summons are not vexatious. We have certainly not assessed at all the merits (should there be any) of the appellant's assertion, but we have seen sufficient to lead us to conclude that there is arguable material provided. It is matter of debate whether the procedure adopted of judicial review in the nature of certiorari is available to go to the County Court to bring up and quash a conviction in that court following trial according to on indictment: see R v Judge McNab; Ex parte the Acting Attorney-General a decision of the Full Court (unreported, 17 August 1977) which is referred to and quoted in some detail in R v Wright and Pope [1980] VR 41, at pp. 46-51. Likewise, in Ex parte Williams (1934) 51 CLR 545, at pp. 549-50, Dixon J. said that habeas corpus "cannot be granted when the prisoner is held under an actual order or sentence, unless the Court making the order exceeded its jurisdiction so that the order is a nullity". The appellant, so far from being discouraged by this latter proposition which he is prepared to accept, relies upon it and submits that the order of the learned County Court judge was, in the circumstances, a nullity, for he was at his trial de- nied natural justice or procedural fairness, in that the prosecutor did not give to him or bring to his notice exculpatory documentary material in the possession or power of the Crown prosecutor. He submitted that the record itself showed error on its face and that the record in this case included the transcript, but I cannot, having read the cases, accept that this is arguable. On the face of things the appellant was fairly tried in accordance with the common law, and he makes no criticism of the learned County Court judge. The record, however it may be construed, and there is still debate upon the matter, does not disclose error. Save for a few references, I do not intend to spend time tracing the enigmatic history of the development of the use of certiorari since the days of Holt CJ, of its abuse by the King's Bench, of its curtailment by Jervis' Acts in so far as the record in criminal proceedings was concerned, and of its relatively modern resurgence since the proliferation of tribu- nals and the decision in R v Northumberland Compensation Appeal Tribunal [1952] 1 KB 338. But see Aronson and Franklin, Review of Administrative Action, p. 559 et seq; de Smith, Judicial Review of Administrative Action, 4th ed, p. 403 and Appendix 1. It is, I think clear that the remedy of certiorari, although having fallen into desuetude in criminal matters after Jervis' Acts, was still equally available in an appropriate case: R v Nat Bell Liquors Ltd. [1922] 2 AC 128, at p. 159 and R v Bolton (1841) 1 QB 66. But it also seems clear that the practice of the King's Bench, where certiorari in criminal matters had its development, was not to grant the writ"after judgment on an indictment". So we find Lord Kenyon CJ, saying in R v Inhabitants of Seton (1797) 7 Term Rep 373; 101 ER 1027: "In the case of summary proceedings orders and convictions before mag- istrates, the proceedings may be removed by certiorari after judgment, because such proceedings can only be removed by certiorari; but where a judgment has been given on an indictment, the record must be removed by writ of error." Certiorari would, in 1797 when Seton's Case was decided, lie only where the writ of error did not lie: see also Groenvelt v Burnell (1700) 1 Ld Raym 454, at p. 469; 91 ER 1202, at p. 1212 and R v Glamorganshire (Inhabitants) (1700) 1 Ld. Raym. 580; 91 ER 1287, at p. 1288. The writ of error did not go to summary proceedings. In R v Inhabitants of Pennegoes and Town of Mackynlleith (1822) 1 B and C142; 107 ER 53 the King's Bench refused certiorari after trial and verdict on a bill of indictment saying that "They [that is to say the inhabitants] can now avail Page 6

themselves of objections to the indictment by writ or error only": see also R v Boaler (1892) 67 LT 354. The writ of error was abolished in Victoria in 1914 (20 Criminal Appeals Act 1914) and s23 of the Supreme Court Act 1958 read: "Subject to any express enactment to the contrary and to any Rules of Court made or for the time being in force the practice and procedure in all criminal causes and matters whatsoever in the Court, shall be the same as the practice and procedure in similar causes and matters before the first day of July One thousand eight hundred and eighty-four: Pro- vided that writs of error and the powers and practice existing in the Supreme Court prior to the commencement of the Criminal Appeals Act 1914 in respect of motions for new trials or the granting thereof in criminal cases shall except so far as the contrary is expressly enacted be deemed by that Act to have been abolished." Now by s5 of the Supreme Court Act 1986 the "practice and procedure in all criminal proceedings in the Court is that existing immediately before the commencement of this Act". In a short article in 69 Law Quarterly Review Mr D M Gordon ascribes the origin of the practice that certiorari would not lie to bring up"adjudications that are called 'plenary' or 'formal'" or sometimes "according to the course of the com- mon law" into which class convictions on indictment fall, to a statute of 1408, 4 Henry 4 c23 which enacts "after judg- ment given in the Courts of Our Lord the King, the parties and their heirs shall be thereof in peace until the judgment be undone by attaint or by error, if there be error". He continued to state: "It seems clear that abolition of the writ of error did not make certiorari an appropriate remedy when it was inappropriate before." It has been suggested that in the 17th and early 18th century there was a good deal of "verbal juggling" required to rec- oncile decisions concerning the application of certiorari because of "error on the face of the record" as we now know it: see Edith G Henderson, Foundations of English Administrative Law, p. 144 et seq. The face of the record rule squarely emerged around 1732 in R v Inhabitants of Woodsterton 2 Barnard KB 207, at p. 247. The notion of "excess of jurisdic- tion" appears to have developed a little later than "error on the face of the record" and then to have been extended, as it is still today, proliferating by means of various ad hoc decisions concerning the notion of jurisdiction. It is this latter development upon which the appellant relies. The idea that bias in the tribunal could constitute a basis for the issue of certiorari on the ground of "excess of jurisdiction" may be seen in R (Giant's Causeway and Tramways Company) v Justices of Co. Antrim [1895] 2 IR (QB and Ex Div) 603 in which Lord Macnaghten figured in colourful and spirited correspondence, and in R (William Hastings) v Chairman and Justices of Galway [1906] 2 IR (KB) 499 in which it was held that the order of a biased tribunal is voidable only - not void. Here, no such notion is relevant and Mr Clarkson was at pains to say that he had no complaint to level at the learned trial judge or jury on his trial. His complaint is that the prosecution either suppressed or negligently failed to produce relevant material which he requested, and which material was available (as has since been made apparent) and that this material, if produced, might well have influenced (or, as he puts it, would certainly have influenced) the jury verdict. Today "jurisdiction" and "want of jurisdiction" have been afforded greater importance by the decision of the House of Lords in Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, dicta from which case has been regu- larly followed. The report of this decision occupies some 109 pages in the law reports and it would seem an imperti- nence to purport to summarise the judgment. The appellant relies upon an extract from Lord Reid's reasons, at p. 171: "It has sometimes been said that it is only where a tribunal acts without jurisdiction that its decision is a nullity. But in such cases the word 'jurisdiction' has been used in a very wide sense, and I have come to the conclusion that it is better not to use the term except in the narrow and original sense of the tribunal being entitled to enter on the inquiry in ques- tion. But there are many cases where, although the tribunal had jurisdiction to enter on the inquiry, it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the inquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provi- sions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into ac- count. I do not intend this list to be exhaustive. But if it decides a question remitted to it for decision without commit- ting any of these errors it is as much entitled to decide that question wrongly as it is to decide it rightly. I understand that some confusion has been caused by my having said in R v Governor of Brixton Prison; Ex parte Armah [1968] AC 192, 234 that if a tribunal has jurisdiction to go right it has jurisdiction to go wrong. So it has, if one uses 'jurisdiction' in the narrow original sense. If it is entitled to enter on the inquiry and does not do any of those things which I have mentioned Page 7

in the course of the proceedings, then its decision is equally valid whether it is right or wrong subject only to the power of the court in certain circumstances to correct an error of law." Lord Pearce in his reasons in the same case said, at p. 195: "Lack of jurisdiction may arise in various ways. There may be an absence of those formalities or things which are con- ditions precedent to the tribunal having any jurisdiction to embark on an inquiry. Or the tribunal may at the end make an order that it has no jurisdiction to make. Or in the intervening stage, while engaged on a proper inquiry, the tribunal may depart from the rules of natural justice; or it may ask itself the wrong questions; or it may take into account matters which it was not directed to take into account. Thereby it would step outside its jurisdiction. It would turn its inquiry into something not directed by Parliament and fail to make the inquiry which Parliament did direct. Any of these things would cause its purported decision to be a nullity." The appellant claims the failure to produce to him at his trial relevant exculpatory material amounts to a denial of natu- ral justice, and accordingly he submits the County Court acted in excess of jurisdiction and the trial was a nullity. He seeks an order that the convictions be brought up and the orders recording them be quashed as a nullity. I have said that we are not in a position on this appeal to judge of the strength or otherwise of the submission that the material not produced to the appellant at this trial and now produced to him would have been likely to have led to a dif- ferent result from that which occurred. It is sufficient to say that, in my opinion, in connection with the convictions for wilfully making in 1977 in a return required by the Companies Act a statement which was false in a material particular knowing the same to be false (counts 1 to 3) it would appear to be at least arguable that there is relevant material which would have tended to assist the defence contained in the material now given to the appellant. These counts were laid by indictment (being many years old) pursuant to s375(2) of the Companies Act 1961. I do not think it can be said that the issue raised is frivolous or vexatious, and I find it necessary to proceed on the foot- ing that it might be proven on a full and proper investigation that there is substance in the appellant's submission . On this assumption the question remains whether it is open to argue that this assumed failure of the prosecution to pro- vide relevant material to the appellant at his trial constituted a denial of natural justice and so rendered his trial a nullity, as being in excess of jurisdiction. At first sight, in my view, such a proposition certainly appears to be to draw the long bow, and to amount to an extravagance. But if these consequences are able to be established, then certiorari would, in my view, go to an inferior tribunal, if not to the County Court in which the convictions were entered after trial on in- dictment. Here, again, the appellant relies upon a decision of the Court of Appeal, R v Leyland Justices; Ex parte Hawthorn [1979] QB 283; 122 Solrs Jo 627 in which Lord Widgery CJ, May and Tudor Evans JJ held that an error of the police prosecutor in failing to give to the defendant, on a charge of driving a motor car without due care and attention, the names of witnesses whose evidence might have been helpful to the defence, was to be equated with "fraud, collusion, and such like matters not affecting the tribunal themselves" and so would justify an application for certiorari to quash the conviction. Lord Widgery, with whose reasons for judgment the other members of the court agreed, said, at p. 286: ". . . we cannot say that the failure of the prosecution which in this case has prevented the tribunal from giving the de- fendant a fair trial should not rank in the same category. "We have come to the conclusion that there was here a clear denial of natural justice. Fully recognising the fact that the blame falls on the prosecutor and not on the tribunal, we think that it is a matter which should result in the conviction being quashed". It is well recognised that a failure of a prosecutor to follow his duty as prosecutor (as discussed by the High Court in R v Apostilides (1984) 154 CLR 563; 53 ALR 445; Whitehorn v R (1983)152 CLR 657; 49 ALR 448; Richardson v R (1974)131 CLR 116; 3 ALR 115 and by this court in R v Lucas [1973] VR 693 and R v Eastwood and Boland [1973] VR 709) may amount, depending on the circumstances, to a miscarriage, and the ordering of a new trial. Whilst those cases deal expressly with the question of the failure of the prosecutor to call a witness to give evidence, they emphasise that the responsibility of the Crown prosecutor is to ensure that the "Crown case is presented with fair- ness to the accused": see Richardson v R at (CLR) p. 119; (ALR) p. 118. I should think that similar considerations would apply when it is a question of the disclosure to the defence of documentary material in the possession or power of the Crown prosecutor, which material would tend to assist the defence case. The deliberate withholding of such material Page 8

could well constitute a miscarriage of justice when viewed against the conduct of the whole trial and so lead to the set- ting aside of the conviction. Further, as the court said in Apostilides, "It is not necessary to postulate misconduct of the prosecutor as an essential condition precedent to a miscarriage of justice" (at (CLR) p. 577; (ALR) p. 457); so, in the present case, if it had been shown on an application to this court for leave to appeal that after conviction it came to the prisoner's knowledge that the Crown had in its possession during his trial documentary material which the prisoner had requested, but had been innocently denied by the Crown, and such material, if available to the prisoner, might well have influenced the result of the trial, I do not doubt that this court would grant leave and allow the appeal setting aside the conviction. It is arguable whether this demonstrates jurisdictional error. Counsel appearing for the Director of Public Prosecutions and the Commissioner for Corporate Affairs has submitted to us that the summons for a writ of habeas corpus is doomed to failure because, irrespective of the convictions which the appellant seeks to quash, the appellant is at the moment imprisoned on sentences for other offences. It is in the circum- stances sufficient to say that, in my opinion, the issues raised for determination on the merits with regard to the applica- tion for judicial review in the nature of certiorari correspond at least in theory to those arising on the summons for a writ of habeas corpus. I do not think that at this stage it is necessary further to consider this point, other than to refer in passing to what this court said in R v Hebaiter[1981] VR367, at p.373. The appellant has also elected pursuant to R209 of the Criminal Ap- peals and Procedures Rules 1988 to apply for leave to appeal out of time against the said convictions. The registrar re- fused such leave on a similar principle to that expressed in R v Pinfold [1988] 1 QB 462, namely that the appellant has made one such application already to this court for leave to appeal against his convictions in the County Court and "there must be a finish to litigation". His application for relief in the nature of certiorari is made accordingly, and I think it must be assumed for the purpose of considering whether to exercise any discretion that the court has to grant certiorari, that no other remedy, save an application for petition of mercy, is open: see s584 of the Crimes Act. The latter remedy is another form of the exercise of the Queen's prerogative, but in the present case it would seem unlikely to be of assistance to the appellant because of the time factors necessarily involved. It would, he submitted, be a barren exercise were he to have served his term of imprisonment and to be released before any adjudication, assuming always that a petition of mercy would be granted and the matter then referred to the Full Court. There is substance, I think, in this consideration. All of which leads me to conclude that the appellant had an arguable case on both his application for judicial review and summons which ought not to have been struck out as disclosing no cause of action. I would allow the appeal against the striking out of the originating motion. As to the order for costs made upon that striking out, I would set aside that order. At one point towards the completion of his submissions the appellant sought an order from this court to join one Peter John Keogh as a defendant pursuant to R906 of the General Rules of Procedure in Civil Proceedings. Mr Keogh appar- ently was the informant against the appellant on two summary offences of which he was convicted allegedly arising out of the same circumstances with which we are concerned. A summons for an order to this effect was issued by the ap- pellant. The court declined to deal with that matter during the course of argument, and suggested to the appellant that if it were sought to pursue it, it might well be pursued, supported by appropriate material, before a master of this court. I turn now to the matter of discovery. Two of the orders which the appellant sought in the originating motion were orders: "5. That the first-named and second-named defendants make and file an affidavit of all documents in their possession or power relating to presentment P1262. "6. That the first-named defendant and the second-named defendant make discovery to the plaintiff of all documents in their possession or power relating to the description of the person or persons in whose possession the documents deliv- ered to the plaintiff by the Victoria Police on 2 March 1989 were held at all material times." These orders were refused by the learned Practice Court judge for reasons which he delivered. The appellant appeals against that refusal. Page 9

A preliminary point also arises for consideration here. Is the procedure set out in "Order 32 -- Preliminary Discovery and Discovery from Non-Party" of"Chapter 1 General Rules of Procedure in Civil Proceedings 1986", which com- menced on 1 January 1987, applicable? The originating motion pursuant to which the plaintiff sought judicial review of his convictions on indictment in the County Court, and in which proceeding by summons the plaintiff sought the issue of a writ of habeas colpus, also con- tained the said applications for discovery. The first of the orders sought seeking discovery of documents relating to pre- sentment P1262 appears to be sought in connection with the judicial review in the nature of certiorari referred to in paras 1, 2 and 3 of the originating motion. But the second order sought is based on R3203, being discovery to identify a defendant, and it is independent of the orders sought otherwise in the originating motion. The learned judge in the Practice Court, when referring to the first of the orders sought, said: "This order is sought pur- suant to r3203 and r3205 and the plaintiff . . . frankly assented to my suggestion that he wanted to go on a 'fishing expe- dition' to see whether he could make out a case against the first-named or second-named defendant for maliciously withholding documents exculpatory of him." I should have thought that the appellant, in seeking an order for an affidavit of documents, was anxious to ensure that he was made aware of all documentary material in the defendants' possession of power relating to his prosecution and trial on presentment 1262. He wished to have an ordinary affidavit of documents under 0.29. He would in the ordinary course have required an order pursuant to R407(1) to the effect that the court being of opinion that the action might "more conveniently continue as if commenced by writ", orders that it so continue. T here would also need to be directions under R407(1)(a) as to pleadings. Only then would 0.29 apply to the proceedings commenced by originating motion, so that without leave a notice for discovery could be served when the pleadings closed (R29.02(1)) or an order obtained for earlier discovery pursuant to R2907(1). However it is important to note R29.07(2) and (3) which reads: "29.07(2) In a proceeding not within R2901 the Court may at any stage order any party to make discovery of docu- ments. "(3) An order under paragraph (1) or (2) may be limited to such documents or classes of documents, or to such ques- tions in the proceeding, as the Court thinks fit." It is R2907(2) that the appellant must call in aid to support his application under para. 5 of the originating motion for an order for early discovery on the originating motion. There is no express indication in the rules as to the matters which the court could or should take into account when it is asked to make an order under R2907(2). Clearly the court has a discretion to exercise and "may at any stage order". In the present case, the appellant rests his whole case for judicial review upon the recent delivery to him of documentary material by the police pursuant to his freedom of information request. It is this documentary material which he asserts is exculpatory of him, and which, along with other documentary material, he sought vainly to obtain from the Crown prosecutor during his trial. The first defendant, the Director of Public Prosecutions, presented the appellant at his trial in the County Court, and the appellant contends that the Commissioner for Corporate Affairs (whom I think we must take as the second defendant) would have supplied the documentary material to the Director of Public Prosecutions from which the evidence was selected to convict the appellant of the offences against the Companies Act 1961. Accordingly, the appellant now wishes to obtain the court's assistance to compel each of the defendants to go on affida- vit as to the relevant documentary material in their "possession custody or power": R 29.01. See Palmdale Insurance Ltd v L Grollo and Co Pty Ltd [1987] VR 113 and Theodore v Australian Postal Commission [1988] VR 272. The issues raised by the appellant are serious and somewhat exceptional, but as I have found earlier, they do not appear to be vexatious or frivolous. I cannot agree that they are shown to be an abuse of process. There is no denial by the defendants of the appellant's assertion that the material now provided to him some two years after his trial was in the possession custody or power of the prosecution at the time of the appellant's trial. All that is said is that the material could have been inspected by the appellant at the time. But as I apprehend the matter, he was in custody at the time and was disadvantaged, presumably to the knowledge of the defendants. Page 10

In my view, if the rules in question are applicable, the request that he now makes for an order pursuant to 0.29.07(2) has substance and would seem to fall within the ambit of the new approach that the rules now make for discovery. Turning to the second order sought under para. 6 of the originating motion, this application is altogether discrete and is made pursuant to R3203 which is headed "Discovery to identify a defendant". It is accurate to describe this application as being in the nature of a "fishing" kind. The rule appears to me to be designed to enable "fishing" to be engaged in, in certain circumstances as set out in the rule. R32.05 would certainly be classed as fishing, and it seems to me that the new rules require the court to put to one side in certain circumstances preconceived notions that fishing expeditions are not permissible. If the application is bona fide and the circumstances in the rule are shown to exist, then it is within the court's discretionary power to order discovery of a limited nature. The learned Practice Court judge considered the matters raised in the originating motion to be matters of a civil nature. If he were correct, then the rules would apply, unless the principles relating to the penal actions to which I refer below were thought to be appropriate to apply in this somewhat unusual mixed action. R105 of Ch 1 states: "These Rules ap- ply to every civil proceeding commenced ... after the commencement date." However, I have said that I consider the originating motion to be criminal in nature. If I am correct, the General Rules of Procedure in Civil Proceedings 1986 and Ch I thereof do not apply to such proceedings. The class of action which has been brought under 0.56, itself one of the said Rules of Procedure in Civil Proceedings, falls in my view into a somewhat unusual category. Although brought in a particular manner in accordance with the said rules, and presumably having to comply with the requirements of 0.56, none the less the proceedings are, in my view, criminal in nature. It is clear on authority that in a civil action for a penalty, saving special statutory provisions, the plaintiff is not entitled to discovery of documents: see R v Associated Northern Collieries (1910) 11 CLR 738. In Queensland, Chubb J. held in R v Hamiguchi [1908] QSR 224 that the rules for discovery do not apply to criminal tri- als. In criminal trials we have a practice and procedure which stems from the application of considerations which do not apply to civil actions. The fairness which is expected to be shown by the Crown prosecutor to an accused is not part of the adversarial ethic in civil suits. So, whilst it would, generally speaking, be quite unfair for a prosecutor not voluntar- ily to produce to the accused material relevant to the trial and going to exculpate him, there is no rule which enables the accused to seek at the outset indiscriminately to see the relevant papers within the possession or control or power of the prosecution. The public interest immunity which operates to excuse the Crown from naming sources, for example, along with the committal process during which witnesses may be called upon to produce documents assists no doubt to provide some rationale for the lack of discovery in criminal cases; but, likewise the rule"that no man shall be required to give or pro- vide evidence to incriminate himself" provides a counterweight from the accused's viewpoint. However, if an accused elects to give evidence, he may be compelled to produce relevant documents in his possession or control: R v Adams [1965] VR 563. Discovery and the right to it pre-trial has an essential element of mutuality about it which it would be difficult to apply in criminal cases. It is the privilege against self-incrimination which appears to lie at the basis of the court's refusal to order discovery against a defendant in actions to enforce penalties: see Egg and Egg Pulp Marketing Board v Korp To- cumwal Trading Co Pty. Ltd. [1963] VR 378, at p. 379; see also the discussion of the matter in Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328, at pp. 333-6; 45 ALR 609, per Mason ACJ., Wilson and Dawson JJ. In the present case, if this were a civil proceeding, I would be inclined to order discovery of a general nature but di- rected to the issue in question; but, being of opinion that the proceeding is criminal, the application must, in my view, be refused. I have said that I consider the application in para. 6 of the originating motion to be a discrete application not dependent upon the earlier relief sought in the motion and not accordingly criminal in nature. It is an application de- signed to ascertain documents which relate to the description of a person or persons against whom the appellant desires to bring a proceeding, that person or persons being someone (or more) whom the appellant, after making reasonable inquiries, is unable to ascertain. This rule has its origins in Australia in Pt3 of the New South Wales Ru!es of Court 1970. In 1974, R3(1) of those rules was amended to eliminate the requirement that a prima facie case be made out before the relief of the rule can be ob- tained. The Victorian R3203 now corresponds with the amended New South Wales R31(1). In the present case the appellant seeks to ascertain from the Director or Public Prosecutions and the Commissioner for Corporate Affairs documentary information in their respective possession, which would reveal the description of the person or persons who held the documentary material which was delivered to him on 2 March 1989 at all material Page 11

times. Whether the words "all material times" are too wide or should be understood to read as if the words "during my trial" were added, I do not think the appellant has made out a case for the granting of such an order against the Director of Public Prosecutions or the Commissioner for Corporate Affairs. First, the fruitless inquiries made must be shown to have been reasonable: see Stewart v Miller [1979] 2 NSWLR 128, at pp. 140-4. Next, it must be seen that there is a bona fide arguable cause of action in the appellant existing against some person or persons whose description is unable to be ascertained: see above citation, at pp. 139-40. Next, it must be shown that the person or persons to whom it is sought that an order under R3203(b) should go is a person who is or is likely to have in his possession some document relating or tending to assist in the ascertainment of the proposed defen- dant. Finally, the court has a discretion in the matter, and the interests of justice in any particular case must be consid- ered. The documents in the present case to which the motion refers are "documents delivered to the plaintiff by the Victoria Police", and these are by implication the documents the non-delivery of which gave rise to some unspecified cause of action. Before the learned Practice Court judge the appellant asserted a right of relief against someone "for maliciously withholding documents exculpatory of him as an accused". The learned Practice Court judge relied on Basebe v Matthews (1867) LR 2 CP 684 and Castrique v Behrens (1861) 3 E. and E. 709 in concluding that no person convicted of a criminal charge can sue the prosecutor for malicious prosecu- tion: see also Halsbury, 4th ed, vol 45, paras 1349-50 and cases noted thereto. It seems clear to me that no such action would lie so long as the appellant's convictions remain. Further, there is no material put forward to support any cause of action other than the evidence that the prosecution on the appellant's trial did not bring to the appellant's notice certain documentary material which the police have now de- livered to the appellant. The court does not know the circumstances in which this alleged failure occurred, whether it was the consequence of an exercise of judgment by the prosecutor or whether or not the prosecutor was aware of the material or of its alleged materiality. I would not be prepared to grant the order for discovery sought pursuant to R3203. Although it does not appear from the appellant's originating motion that an application pursuant to R3205 was made to the court, some argument was directed in reliance upon this rule. In my opinion, no order should be made pursuant to R3205 in this case: see G Breschi and Son Pty Ltd v A F T Ltd.[1988] VR 109. I have not in these reasons referred to a number of the appellant's detailed submissions concerning, for example, "due process", as I do not deem it necessary to do so. In my opinion, if leave be necessary, there should be leave to the appellant to appeal against the order dismissing with costs the originating motion herein. The appeal should be allowed and the orders below set aside. The summons to strike out the said originating motion should be dismissed with no order as to costs. S24 of the Supreme Court Act 1986 which gives the court a discretion with regard to costs specifically provides that the grant to a judge of such a discretion "in all matters in the Court" does not alter the practice in any criminal proceeding. In accordance with these reasons, the application for discovery made in para. 6 of the originating motion was a civil matter, the dismissal of which would normally attract costs. But, in my opinion in this case, in the exercise of the court's discretion, no order should be made. On the summons seeking leave to amend the name of the second-named defendant to read "Commissioner for Corporate Affairs" the appellant should in my view be granted such leave. The documents have been served on the commissioner and R6404(4) is applicable. The court has heard no argument supporting the view that the Director-General of Corrections named as the third de- fendant on the originating motion should remain as a defendant or that any arguable case is made out against him. It would seem that his summons seeking to be dismissed from the action should be granted if this summons is still on foot. The appellant's ancillary summons seeking a writ of habeas corpus on the ground that he has been imprisoned wrongly by a County Court acting in excess of jurisdiction in a trial which was a nullity should stand adjourned. The applications for discovery of documents contained in paras 5 and 6 of the originating motion should stand dis- missed. Page 12

The application pursuant to R209 of the Criminal Appeals and Procedures Rules 1988 for leave to appeal out of time from the convictions recorded against the applicant in the County Court was not extensively argued and in my view should be adjourned to a date to be fixed.

Crockett J:

I agree.

Nathan J:

I agree.

Order Appeal allowed.

Solicitor for the respondent: J. M. Buckley, solicitor to the Director of Public Prosecutions.

C R WILLIAMS BARRISTER-AT-LAW