New South Wales District Court CITATION: R v Lipton, Richard [2010] NSWDC 187 JUDGMENT DATE: 9 April 2010 JURISDICTION: Criminal JUDGMENT OF: King SC DCJ DECISION: In respect of the subpoena, the Court orders that para 1 as confined by agreement between the parties, para 2 and para 4 issued to the Commissioner of Police on 25 November 2009 are set aside on the grounds that the subpoena lacks a legitimate forensic purpose to require production of the documents, subject to those paragraphs of the schedule. CATCHWORDS: Notice of Motion to set aside subpoena - legitimate forensic purpose - fishing expedition - public interest immunity LEGISLATION CITED: Drug Misuse and Trafficking Act 1985 Attorney-General for New South Wales v Ghidgey [2008] NSWCCA 65 CASES CITED: Commissioner for Railways v Small (1938( 38 SR (NSW) 563 Carroll v Attorney-General (1993) 70 ACrimR 162 R v Saleam [1999] NSWCCA 66 Regina PARTIES: Commissioner of Police (NSW) Lipton, Richard FILE NUMBER(S): 2009/78658 COUNSEL: Mr P A Regattieri for Commissioner of Police (NSW) Mr P Hastings QC for Mr R Lipton JUDGMENT 1 HIS HONOUR: The matter before the Court is a notice of motion to set aside a subpoena issued by the defendant in respect of criminal proceedings between Regina and Richard Alexander Lipton. The subpoena was issued to the Commissioner of Police on 25 November 2009. The Commissioner seeks to have the subpoena set aside only in part, that part being paras 1, 2 and 4. 2 Paragraph 1 of the schedule refers to all duty notebooks and diaries then on issue to any officer involved in the investigation and/or arrest of Richard Alexander Lipton in the period January 2009 to May 2009. By agreement between the parties, the terms of para 1 have been narrowed for present purposes to such documents as relate to the investigation or arrest of Richard Lipton, and to a Melanie Brown. 3 Paragraph 2 is all statements and reports made in relation to the said matter in relation to Melanie Brown, referred to in police statements/intercepts as an "unidentified female." 4 Paragraph 4 is all written or electronic records of communication between any officer of the New South Wales Police and Melanie Brown. 5 The principal ground on which the Commissioner seeks to have the subpoena set aside is on the basis that there is no legitimate forensic purpose for the production of the specified documents. Secondly, contingent on the finding in respect of that argument, the Commissioner of Police argues that if the Court is satisfied as to there being a legitimate forensic purpose, any documents would be protected by a claim of public interest immunity. 6 The defendant, Richard Lipton, has entered pleas of guilty in respect of two charges of supplying a large commercial quantity of a prohibited drug, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. 7 Tendered during the course of the proceedings were the following exhibits. Exhibit 1 is a statement prepared for the criminal proceedings by Detective Senior Constable Julia Robb, the officer in charge of the matter, dated 2 June 2009. Exhibit 2 is a transcript made from an audio recording of a conversation occurring on 17 April 2009 at Centennial Park involving the defendant, an undercover operative referred to as Sam and a female who is referred to in the transcript as "an unidentified female", but otherwise known as Melanie Brown. Exhibits 1 and 2 were tendered on behalf of the defendant. 8 Exhibit 3 is what is referred to as an "Open Affidavit" from the Assistant Commissioner of Police, Peter Dein, dated 22 March 2010. Provided as a confidential exhibit with that affidavit were a number of documents collectively referred to in the affidavit as "Confidential Exhibit 1". Exhibit 4 was a further affidavit from Peter Dein, also dated 22 March 2010, and referred to as being a "Confidential Affidavit". As the confidential affidavit Exhibit 4 was provided to the Court at the same time as the confidential exhibit referred to in Exhibit 3, I made the "Confidential Exhibit 1" part of Exhibit 4, since they were both said to be confidential. 9 The law in respect of materials the subject of a subpoena and the question of legitimate forensic purpose has been settled for some time, and was recently affirmed in the matter of Attorney-General for New South Wales v Chidgey [2008] NSWCCA 65. In that case, the Court of Criminal Appeal affirmed the principles as being, in summary, taken from that judgment: (A) The basic principle governing production of documents pursuant to subpoena is that a party is not entitled to use the subpoena for the purpose of "fishing," that is, "endeavouring not to obtain evidence to support his case but to discover whether he has a case at all." That principle was taken from Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 575. (B) It is not sufficient for a party seeking production of documents to merely establish that such documents are or may be relevant; mere relevance is not sufficient. "It is not open to a party to subpoena documents merely in order to determine whether they may be relevant and may be of assistance to his case in the proceedings." That principle was taken from Carroll v Attorney-General (1993) 70 ACrimR 162 at 181. (C) The correct test for determining whether documents are required to be produced pursuant to a subpoena is as stated by Simpson J in R v Saleam [1999] NSWCCA 66 at (11). It is a two-step process. Before access is granted, the subpoenaing party must identify: (I) a legitimate forensic purpose for which access is sought, and (II) establish that it is "on the cards" that the documents sought will materially assist his or her case. [ at para 64 ] 10 The onus is on the party issuing the subpoena to demonstrate the legitimate forensic purpose and that it is on the cards that the documents sought will materially assist his or her case. 11 In R v Saleam [1999] NSWCCA 86, the Court identified what needed to be demonstrated with respect to a "legitimate forensic purpose". Matters identified are: (i) the issue or issues in dispute at trial (ii) what the subpoenaing party's case will be on that issue, or those issues (iii) how the subpoenaed documents will assist the subpoenaing party in his case, and (iv) what are the grounds for believing that documents will in fact so assist. 12 The material relied on by Mr Hastings QC, counsel for the defendant, is contained in Exhibits 1 and 2. In particular, he points to Exhibit 1, para 8, in which Detective Senior Constable Robb said, in respect of the meeting on 17 April 2009 at Centennial Park: "At 12.30pm I observed a Richard Lipton arrive at the Centennial Park restaurant with an unidentified female. At this time Lipton was wearing a white T-shirt, khaki coloured knee length shorts and glasses." 13 While the female is further referred to in the course of the observations made by the officer of the meeting, she is not identified by name and remains as "an unidentified female". Exhibit 2 is the transcript of that meeting, where again the "unidentified female", in fact Melanie Brown, takes part in the conversation between the undercover operative and the defendant. Her part in the conversation, according to the transcript, is a very limited one, there being more conversation relating to her in relation to what the parties might eat or drink than in relation to any topic related to the apparent purpose of the conversation: to arrange the supply of prohibited substances to the undercover operative by Mr Lipton. 14 However, at p 15, she asks the undercover operative, in effect, whether he had received the sample that she had sent. He indicated that someone else had received it, and that he had been told that it was "good". However, the conversation apart from the inquiry as to whether he had received the sample was otherwise essentially conducted thereafter between the undercover operative and the defendant. Clearly, Ms Brown was present and a party to the conversation, including the balance of the conversation not referred to but relevant to the prosecution of Mr Lipton in relation to arrangements for the supply of prohibited substances, and an agreement between the undercover operative and the defendant to pursue that object. 15 Those two exhibits are the only exhibits relied on on behalf of the defendant. The argument advanced by Mr Hastings QC in respect of the four matters identified in Saleam as being relevant to discharging the onus of proving a legitimate forensic purpose for the access, that it is on the cards that the documents sought would materially assist the defendant's case, is that in respect of (I), the issue or issues in dispute at trial, the defendant having entered a plea of guilty in respect of each of the charges, that the material sought would be relevant to establishing the defendant's degree of moral culpability in respect of the drug transactions. That is my summary of the submission made by Mr Hastings, rather than the manner in which he phrased it. 16 In respect of (II) what the subpoenaing party's case would be on that issue, although Mr Hastings indicated the defendant's case would be that Melanie Brown "may have enticed" the defendant into dealing with the undercover operative, and that this would be a mitigating circumstance if it could be demonstrated that he would not have embarked on committing the offences, except for the action of the undercover police officer or those acting with him, ie, Melanie Brown. He then went on to state that it was not simply about the undercover operative, but that the whole of the venture was set up by Melanie Brown, and that the offences would not have been committed but for her introduction of the undercover operative. However, he indicated that he was not alleging entrapment or any like issue. 17 In respect of the issue (III), how the subpoenaed documents would assist the subpoenaing party in his case, Mr Hastings indicated or asserted that the documents would assist, although the question of whether they would assist was based only on "suspicions at this time" arising from the fact that it was Melanie Brown who introduced the undercover operative to the defendant at those first negotiations on 17 April 2009. 18 In respect of issue (IV), what are the grounds for believing that the documents will in fact so assist, Mr Hastings indicated that all he had at the moment was Mr Lipton's "suspicion" and asserted that Mr Lipton was getting cold feet, and that Ms Brown persuaded him to continue, so that the documents "are suspected" to demonstrate she was encouraging him to continue to deal with the undercover operative. 19 The sole basis for the application appears, from the material before the Court, to result from the fact that Ms Brown introduced the defendant to the undercover operative, that is, the defendant's suspicion that in doing so, she was aware that the person she was introducing the defendant to was, in fact, an undercover police officer, and relies in affirmation of that suspicion on the fact that she is referred to in Exhibit 1, Officer Robb's statement, as "an unidentified female", as well as in the transcript of the recorded meeting also as "an unidentified female". Mr Hastings referred to that as being evidence that she had been effectively written out of the police brief served on the defendant. 20 The Facts sheet attached to Exhibit 3 as Annexure A, which was prepared for the purposes of the proceedings against the defendant when arrested, refers to the meeting in Centennial Park between the defendant and the undercover operative on 17 April 2009. It does not make any mention of Melanie Brown, or even "an unidentified female" as being present at that meeting. That is not surprising, since the Facts are designed simply to summarise in a brief and relevant fashion the evidence available against the defendant the facts relate to, rather than to provide a blow-by-blow description of the whole of the events. 21 The Facts go on to detail the further arrangements and discussions on other occasions and the supply on other occasions of prohibited drugs, and the arrangements for such supply made between the defendant and the undercover operative. There is no suggestion that Melanie Brown, who is not referred to in the facts thereafter, had any role to play in the subsequent transactions between the defendant and the undercover operative. Nor is there any evidence before the Court adduced on behalf of the defendant as to her having had any such role, or even to having coerced or pressured or enticed the defendant to either commence the dealings with the undercover operative, or to continue in any way with any of the actual offences committed. There is nothing more than the bald assertion made by Mr Hastings that the defendant's case relating to issue (II), as identified in Saleam, that his case will be that she may have enticed him into dealing with the undercover operative, and that it appears that the offences would not have been committed but for the introduction of the undercover operative. 22 There is no evidence other than the suspicion arising from Exhibits 1 and 2, as previously described. Certainly, it would be relevant to the question of penalty imposed on the offender on his plea if it could be demonstrated that Melanie Brown was acting as an agent of the authorities, and that she did coerce, pressure or entice the defendant into committing offences that he would not otherwise have committed. 23 Any coercion, pressure or enticement that the defendant intended to rely on in his plea would be in the circumstances peculiarly well-known to him, but no evidence has been provided to the Court in response to the notice of motion to support any contention that he was coerced or pressured or enticed into committing the offences which he would not otherwise have committed; nor is there any other evidence adduced on behalf of the defendant to indicate that that is in fact his case by other evidence, in particular, as an example, any record of interview in which such assertions might have been made. 24 It has not been asserted that the matter involved any entrapment by police officers, nor, as already stated, is there any evidence of the defendant being pressured or coerced or enticed into supplying the prohibited drugs by Melanie Brown, or that he would not have otherwise committed the offence. 25 Accordingly, the Court finds that the defendant has not discharged the onus of demonstrating a legitimate forensic purpose for which the access is sought, nor that it is "on the cards" that the documents sought would materially assist his case. Indeed, the subpoena in the circumstances in relation to the challenged portions of it has the appearance merely of being a fishing expedition to establish whether or not Melanie Brown was a police informant for the purposes of introducing the undercover operative to the defendant, and thereafter establishing or attempting to establish whether there may be a ground relevant to the question of mitigation. 26 Accordingly, in respect of the subpoena, the Court orders that para 1 as confined by agreement between the parties, para 2 and para 4 issued to the Commissioner of Police on 25 November 2009 are set aside on the grounds that the subpoena lacks a legitimate forensic purpose to require production of the documents, subject to those paragraphs of the schedule1. ********** 1 Judgment considered in Lipton v R [2010] NSWCCA 175 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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