New South Wales District Court CITATION: R v Richard LIPTON (No.2) [2010] NSWDC 295 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 29/10/10; 12/11/10; 26/11/10. JUDGMENT DATE: 26 November 2010 JURISDICTION: CRIMINAL JURISDICTION JUDGMENT OF: Finnane QC DCJ DECISION: Stay of proceedings granted until the Director of Public Prosecutions informs the Court that it has sought and obtained from the officer in charge all the documents pertaining to the relationship between the Police and Melanie Brown; and further that the Director has formed an opinion on whether those documents may be relevant to any matter of sentence of the offender; and further that the Director has communicated that opinion to the legal adviser of the offender. (Note: a Crown appeal is pending as of the date of publication of this judgment) CATCHWORDS: Notice of motion for stay of proceedings - Crown's duty of disclosure - material in possession of the New South Wales Police - whether Director of Public Prosecutions ought to obtain existing documents and form an opinion as to whether they should be disclosed. Guidelines of the Office of the Director of Public LEGISLATION CITED: Prosecutions (NSW) Guidelines (s 18) Director of Public Prosecutions Act 1986 (NSW), Schedule 1. CASES CITED: Grey v the Queen [2001] HCA 65; Mallard v the Queen [2005] HCA 68; Regina v Blackledge [1996] 1 Cr. App.R 326; Regina v Brown [1994] 1 WLR 1599; Regina v Maguire and others [1992] 2 WLR 767; Regina v Petroulias (no 22) [2007] NSWSC 2007. PARTIES: Regina Lipton, Richard FILE NUMBER(S): 2009/78658 Mr P Hastings QC for the applicant COUNSEL: Mr G Bellew SC for the Crown SOLICITORS: James A Moustacas & Co, solicitors for the applicant Director of Public Prosecutions 1. Richard Lipton has pleaded guilty to a serious offence of supplying prohibited drugs. He was arrested on 21 May 2009 and has appeared before me for sentence together with a man by the name of Allan Sassoon. 2. Before the matter came before me, there was litigation before his Honour Judge King in which the investigating Police were required by subpoena to produce documents directed to establishing the role of a woman called Melanie Brown. It would appear that Melanie Brown was in some form of relationship with the accused Lipton and it was put on behalf of Lipton that there may be material showing that she had induced him to commit the offences with which he has been charged. 3. It would be relevant on sentence if he were persuaded by someone to commit offences, particularly if that person were acting as the agent of Police officers. 4. Police objected to producing material on two grounds: 1. There was no legitimate forensic purpose in requiring the production of the documents. 2. The documents were properly protected by public interest immunity. 5. His Honour Judge King, who gave judgment on the matter on 9 April 2010, dealt with the matter entirely on the basis that there was no legitimate forensic purpose established for production of documents. That decision was the subject of an appeal to the Court of Criminal Appeal which gave judgment on 9 August 2010. The Court of Criminal Appeal upheld Judge King's decision but on a different basis. The Court of Criminal Appeal held that there was no evidence from the offender to substantiate the claim that he had been induced to commit the offence by Melanie Brown, acting as the agent of Police officers and, on that basis, held that no legitimate forensic purpose had been established. 6. When the matter first came before me, Mr Peter Hastings QC for the applicant contended that the Director of Public Prosecutions had a duty to satisfy itself, by calling for relevant documents concerning Mr Brown, that there was nothing to disclose to the defence. Mr Christopher Allison, a solicitor employed by the Director of Public Prosecutions was appearing for the prosecution on this day and made it plain that he did not have any authority to deal with this matter and I adjourned it briefly to enable a Crown prosecutor to appear. I then required Mr Hastings to file a formal notice of motion. 7. The offender sought by notice of motion of 11 October 2010, to have the proceedings stayed until such time as the Crown discloses to the defence materials relating to communications between members of the New South Wales Police Force and Melanie Brown in relation to the investigation into the matters which are the subject of the charges against the offender, currently in the possession of the New South Wales Police. 8. In answer to the notice of motion, Mr Allison has sworn an affidavit in which he makes it clear that he has not sought any documents from the Police for his inspection. Rather, he has enquired of the officer in charge about what information he has and has been told that there is no information. I would take the answer of the officer in charge to mean that he does not intend to disclose to Mr Allison documents that he has concerning Melanie Brown. Having regard as I do to what occurred in the earlier proceedings, I would draw the inference that the Police regard the documents that undoubtedly exist as being not producible because of the decisions of Judge King and the Court of Criminal Appeal. Mr Allison has taken the view that he has no duty or even right to seek the documents. 9. Mr Peter Hastings QC for the offender has submitted to me, with reference to much well-known authority, that the Crown is under an obligation to form its own opinion on the production of documents and it cannot delegate this duty to a Police officer. 10. The Director of Public Prosecutions (NSW) pursuant to powers granted to him under the Director of Public Prosecutions Act 1986 (NSW) has promulgated Guidelines, dealing inter alia, with the duty of the prosecution to disclose material to the accused. The relevant guideline is: "18. Disclosure [Furnished 20 October 2003; amended 1 June 2007] Prosecutors are under a continuing obligation to make full disclosure to the accused in a timely manner of all material known to the prosecutor which can be seen on a sensible appraisal by the prosecution: •to be relevant or possibly relevant to an issue in the case; •to raise or possibly raise a new issue whose existence is not apparent from the evidence the prosecution proposes to use; and/or •to hold out a real as opposed to fanciful prospect of providing a lead to evidence which goes to either of the previous two situations. The prosecution duty of disclosure does not extend to disclosing material: •relevant only to the credibility of defence (as distinct from prosecution) witnesses; •relevant only to the credibility of the accused person; •relevant only because it might deter an accused person from giving false evidence or raising an issue of fact which might be shown to be false; or •of which it is aware concerning the accused's own conduct to prevent an accused from creating a trap for himself or herself, if at the time the prosecution became aware of that material it was not seen as relevant to an issue in the case or otherwise disclosable pursuant to the criteria above. In all matters prosecuted by the Director, Police, in addition to providing the brief of evidence, must notify the Director of the existence of, and where requested disclose, all other documentation, material and other information, including that concerning any proposed witness, which documentation, material or other information might be of relevance to either the prosecution or the defence in relation to the matter and must certify that the Director has been notified of all such documentation, material and other information. (Procedures are in place for such certification to occur.) Subject to public interest immunity considerations, such material, if assessed as relevant in the way described above, should be disclosed and, where practicable, made available, to the defence. Where a prosecutor receives, directly or indirectly, sensitive documentation, material or information, or material that may possibly be subject to a claim of public interest immunity, the prosecutor should not disclose that documentation, material or information to the defence without first consulting with the Police officer-in-charge of the case. The purpose of the consultation is to give that officer the opportunity to raise any concerns as to such disclosure. Accordingly, the officer should be allowed a reasonable opportunity to seek advice if there is any concern or dispute. Where there is disagreement between a prosecutor and the Police as to what, if any, of the sensitive documentation, material or information should be disclosed and there is no claim of public interest immunity, then in cases being prosecuted by counsel, the matter is to be referred to the Director or a Deputy Director and in cases being prosecuted by lawyers, the Solicitor for Public Prosecutions or a Deputy Solicitor. In cases where a claim of public interest immunity is to be pursued or is being pursued, then the question of disclosure will be determined by the outcome of that claim. The duty of disclosure extends to any record of a statement by a witness that is inconsistent with the witness' previously intended evidence or adds to it significantly, including any statement made in conference (recorded in writing or otherwise) and any victim impact statement. Subject to public interest immunity considerations, the Director will not claim legal professional privilege (including client legal privilege) in respect of such statements recorded in writing or on tape, provided the disclosure of such records serves a legitimate forensic purpose. If a witness makes any such statement in conference (adding significantly to or inconsistent with any previous statement/s), the lawyer present must note that fact and arrange for a supplementary written statement to be taken by investigators. That supplementary statement should be disclosed to the defence. Rare occasions may arise where the overriding interests of justice - for example, a need to protect the integrity of the administration of justice, the identity of an informer (covered by public interest immunity) or to prevent danger to life or personal safety - require the withholding of disclosable information. Such a course should only be taken with the approval of the Director or a Deputy Director. Legal professional privilege ordinarily will be claimed against the production of any document in the nature of an internal ODPP advising (eg. a submission to the Director, submissions between lawyers and Crown Prosecutors). Reference should be made to Barristers' Rules 66, 66A and 66B and Solicitors' Rules A66, A66A and A66B ( Appendix B ) . The requirement of Barristers' Rule 66 and Solicitors' Rule A66 to disclose "the means of finding prospective witnesses" may be satisfied by making the witnesses available to the opponent where possible, subject to public interest immunity considerations. It remains the practice of the ODPP not to include addresses or telephone numbers of witnesses in statements provided to the defence (except where they are material to an issue in the proceedings)." 11. A duty of disclosure is also imposed on Police officers who are required to sign a disclosure certificate made out in the form prescribed in Schedule 1 of the Director of Public Prosecutions Act 1986 (NSW). 12. That form is in the following terms: Schedule 1 Disclosure certificate (for prosecutions and advisings) (Clause 5) ( Director of Public Prosecutions Act 1986 , section 15A) Matter of: Charge No(s): H For indictable offence(s) of: Acknowledgement I am aware that as a Police officer investigating an alleged indictable offence I have a duty, under section 15A of the Director of Public Prosecutions Act 1986 , to disclose to the Director of Public Prosecutions (DPP) all relevant information, documents or other things obtained during the investigation that might reasonably be expected to assist the case for the prosecution or the case for the accused person. I am aware that this duty continues until the DPP decides that the accused person will not be prosecuted for the alleged offence(s), the accused person is found guilty or acquitted, or the prosecution is terminated. I am aware that my duty to disclose as outlined above is subject to bona fide claims of privilege, public interest immunity or statutory immunity and I am aware that such claims are to be directed through my Commander to the General Manager, Court and Legal Services of the NSW Police Force. Certification 1 Relevant sensitive material not contained in the brief to the DPP There IS/IS NO [cross out the word or words that do not apply] sensitive material that is not contained in the brief of evidence provided to the DPP which might reasonably be expected to assist the case for the prosecution or the case for the accused person. In this certificate, "sensitive material" means all relevant information, documents or other things obtained during the investigation that are subject to a bona fide claim of privilege, public interest immunity or statutory immunity. 2 Relevant non-sensitive material not contained in the brief to the DPP I am aware that relevant material that is not sensitive material that is not contained in the brief is to be listed in the manner indicated in the Schedule to this certificate and, unless it is impracticable, I am required to provide a copy to the DPP with this certificate. If it is impracticable to provide any or all of such material with this certificate, I am aware that I must retain the material for as long as the duty to disclose it exists and facilitate access to the material by the DPP. There IS/IS NO [cross out the word or words that do not apply] relevant material that is not sensitive material that is not contained in the brief of evidence provided to the DPP which might reasonably be expected to assist the case for the prosecution or the case for the accused person. Undertaking I undertake to advise the DPP in writing, as soon as practicable, if I become aware of any additional information, documents or other things that might reasonably be expected to assist the case for the prosecution or the case for the accused person. Signed [OIC of case]: Date: Name: Rank: Received and noted by Brief Manager Signed [Brief Manager]: Date: Name: Rank: Schedule Page of Matter of: Charge No(s): H Schedule of relevant non-sensitive information, documents or other things [Not included in the brief of evidence] Description of information, document or other things (Accurately list all relevant material briefly) Is the material attached? (Mark "YES" or "NO" against each) 13. What is abundantly clear from a consideration of the judgments of Judge King and the Court of Criminal Appeal is that there is material linking Melanie Brown to the offender and to the Police and it should be obvious to the prosecuting authority, the Director of Public Prosecutions that there is material available which is relevant or possibly relevant to an issue in the case, namely the culpability of the offender and whether this is lessened in any way by the activities of and relationship with Melanie Brown. 14. It also seems obvious to me that there could be no public interest in suppressing her name since it is publicly known. Part of her role is already known and there is every reason to believe that Police officers have in their possession material that could relate to the relevant issues in the sentencing of the offender. 15. What is also clear is that Mr Allison has taken the view that because there has been a claim of public interest immunity by the Police, he has no obligation to inquire further. 16. In taking this attitude, he is following a practice that has been in existence for as long as I can remember of the Crown taking no interest in public interest immunity claims and leaving it entirely to the Police who are represented in court by the Crown Solicitor and counsel briefed by the Crown Solicitor. 17. However, in my opinion that practice is wrong and should be abandoned. It is the prosecution that has the duty of disclosure. There may be an additional disclosure requirement imposed on Police officers, but that does not absolve the Director of Public Prosecutions from independently assessing whether or not there is material that should be disclosed. In my opinion, the Director cannot hide behind a certificate given by a Police officer and must, in circumstances where it is clear that Police have in their possession material that could be relevant to assist the accused either in mounting a defence or in mitigating sentence, enquire whether, notwithstanding the certificate, other information exists that might be relevant for disclosure to the accused. I have been referred to a number of authorities and in particular to the following: Grey v the Queen [2001] HCA 65; Mallard v the Queen [2005] HCA 68; Regina v Blackledge [1996] 1 Cr. App.R 326; Regina v Brown [1994] 1 WLR 1599; Regina v Maguire and others [1992] 2 WLR 767; Regina v Petroulias (no 22) [2007] NSWSC 2007. 18. These authorities all support the proposition that the duty of disclosure is on the Crown. A court cannot order the Crown to do its duty and to insist that the Police disclose information to it, but if the failure to disclose information creates a miscarriage of justice then the court can do something about the miscarriage of justice. 19. In the case of Mallard [2005] HCA 68, Police withheld from the prosecution material that might well have assisted the accused. The prosecution itself did not deliberately withhold information from the defence. It relied on the Police to provide all relevant information. Nevertheless, the High Court of Australia set aside the conviction and ordered a new trial. This is but one example of what can happen when the Police are allowed to determine what is relevant and what should be disclosed. 20. That being so, in my opinion, the Director of Public Prosecutions cannot through an employed solicitor refuse to seek access to the documents that bear on this issue on the basis that it is a matter for the Police and their views are what matters. 21. Contrary to what Mr Allison wrote, this issue was determined neither by his Honour Judge King nor by the Court of Criminal Appeal since the matter was not raised at all before Mr Hastings raised it with me. 22. A review of the authorities makes it plain that grave miscarriages of justice can occur when Police officers keep to themselves material relevant to an issue. 23. I have never understood how this practice has developed. The Crown is one and indivisible in the State of New South Wales. The Director of Public Prosecutions prosecutes all trials in the State of New South Wales. Police have no part in the prosecution process. Police conduct investigations and collect evidence but at no point do they determine whether somebody should be prosecuted. They are entitled to express their opinions to the offices of the Director of Public Prosecutions and they can seek advice from officers of the Director. 24. There can be no question of public interest immunity as between the Police and the Director of Public Prosecutions. If the Director requires the Police to produce documents which the Police are in the opinion should be the subject of a public interest immunity claim, the Director can form an opinion about the correctness of that claim and, as the guidelines make clear, if the public interest in not disclosing information outweighs the public interest in proceeding to trial or continuing proceedings in someway, the Director can abandon the trial or the proceedings. 25. In my opinion, the Director of Public Prosecutions through his officers is obliged to form opinions as to whether documents exist and evidence exists that might bear upon a real question in proceedings, other than some matter that goes merely to credit. 26. Once it is clear that relevant material exists, it is the prosecution's duty to obtain that material, inspect it and determine whether that material should be produced to the accused or the offender. If a Police officer is of the belief that the material should not be produced to the accused or the offender, he should nevertheless produce it to the Director of Public Prosecutions and express his opinions as to why the material should not be made available to the accused/offender. 27. The prosecutor then, as the person responsible for conducting the proceedings should make a decision. If there is a legitimate dispute to be litigated, it should be litigated but by the Director and not by the Police. 28. In my opinion, the practice that has been followed for many years is wrong in principle and should be discontinued. 29. In my opinion, the Director of Public Prosecutions, knowing that material may exist that could bear upon legitimate matters concerning the sentence of the offender, has through his solicitor employee, Mr Allison, declined to make any enquiries on the basis that the matter has already been determined by the courts. In my opinion, that has not happened at all and the Director of Public Prosecutions is under an obligation to seek the material that is relevant to this issue, to examine it and to form an opinion. 30. Of course, it is for the Director to form an opinion as to whether there should be a disclosure. The notice of motion does not ask for the production of any documents, but asks merely that the Director get documents that obviously exist and form an opinion as to whether they should be disclosed. It is a very unusual application since it is made in circumstances where the offender has pleaded guilty to a serious offence. Nevertheless, there appears to be in existence material that may bear upon a very relevant question as to whether the offender was led into committing an offence or offences by Melanie Brown, either acting on her own behalf or acting as an agent for the Police. The only sanction I can impose, if the Director declines to seek any documents from the Police to enable him to form his view on these issues, is to grant a stay of proceedings and to consider granting bail. 31. Accordingly, I grant a stay of proceedings. This stay will continue until I have been informed that the Director has sought and obtained from the Officer in Charge all documents pertaining to the relationship between the Police and Melanie Brown; AND FURTHER that the Director has formed an opinion on whether those documents may be relevant to any matter of sentence of the offender; AND FURTHER that the Director has communicated that opinion to the legal adviser of the offender. I stand the matter over for 7 days to Friday 3rd December 2010. ********** 10/02/2011 - Clerical error - name of Counsel typed twice. - Paragraph(s) coversheet 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.