New South Wales Court of Criminal Appeal CITATION: Lipton v R [2010] NSWCCA 175 HEARING DATE(S): 21 June 2010 JUDGMENT DATE: 9 August 2010 JUDGMENT OF: McClellan CJatCL at 1; Hislop J at 25; Barr AJ at 26 DECISION: 1. Application dismissed. 2. Applicant ordered to pay respondent's costs. CATCHWORDS: CRIMINAL LAW - whether District Court judge erred in concluding there was a lack of evidence in support of a legitimate forensic purpose by the applicant in the form of a subpoena seeking production and access - failure by applicant to place material evidence before the court in establishing it was on the cards that the documents sought would assist the applicant's case LEGISLATION CITED: Drug Misuse and Trafficking Act 1985 Attorney-General (NSW) v Chidgey [2008] NSWCCA 65; (2008) 182 A Crim R 536 CASES CITED : Principal Registrar of the Supreme Court v Tastan (1994) 75 A Crim R 498 R v Saleam [1999] NSWCCA 342 Taouk v R (1992) 65 A Crim R 387 Richard Lipton (applicant) PARTIES: Commissioner of Police (respondent) Director of Public Prosecutions FILE NUMBER(S): CCA 2009/78658 P S Hastings QC (applicant) COUNSEL: M A Wigner SC/R Regattieri (respondent - Commissioner of Police) N Gouda (Director of Public Prosecutions) SOLICITORS: James A Moustacas & Co (applicant) NSW Crown Solicitor's Office (respondent - Commissioner of Police) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2009/78658 LOWER COURT JUDICIAL OFFICER: King DCJ LOWER COURT DATE OF DECISION: 9 April 2010 IN THE COURT OF CRIMINAL APPEAL 2009/78658 McCLELLAN CJ at CL HISLOP J BARR AJ MONDAY 9 AUGUST 2010 LIPTON, Richard v R Judgment 1 McCLELLAN CJ at CL: The applicant pleaded guilty in the District Court to two charges of supplying large commercial quantities of a prohibited drug contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. He is currently awaiting sentence. 2 The applicant was arrested and charged on 21 May 2009 following a number of transactions during which he supplied cocaine and MDMA to an undercover police officer. Throughout the period when the transactions were conducted the applicant was in a personal relationship with Ms Melanie Brown with whom, so he has instructed his counsel, he had many discussions in relation to his drug dealings with the undercover officer. The applicant has indicated that he now believes that at that time, Ms Brown was collaborating with the police. 3 The applicant has issued a subpoena in his sentencing proceedings seeking access to records of the Police Service relating to Ms Brown's dealings with the police. The Commissioner of Police successfully objected to the production of some of the documents sought by the subpoena because, so it was submitted in the District Court, there was the lack of a legitimate forensic purpose. A claim was also made for public interest immunity. 4 Paragraphs 2 and 4 of the schedule to the subpoena are in the following terms: 2. All statements made in relation to the said matter (the investigation of the applicant) in relation to Melanie Brown – referred to in police statements/intercepts as an "unidentified female" and 4. All written or electronic records of communications between any officer of the NSW police and Melanie Brown. 5 The respondent originally filed a Notice of Motion in the District Court challenging paragraph 1, as well as paragraphs 2 and 4, of the schedule. However, the challenge is now confined to paragraphs 2 and 4. 6 When the Motion came before the District Court, counsel for the respondent handed two folders of documents to the presiding judge which were said to fall within the challenged paragraphs of the subpoena. The applicant's counsel was not given access to the documents. His Honour was also provided with an open affidavit as well as a confidential affidavit in support of the claim for public interest immunity. 7 In his reasons for judgment his Honour said that the applicant had not: "… discharged the onus of demonstrating the 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 of merely being a fishing expedition to establish whether or not Melanie Brown was a police informant for the purpose of introducing the undercover operative to the [applicant], and thereafter establishing or attempting to establish whether there may be a ground relevant to the question of mitigation." 8 The issue of public interest immunity was not considered in the District Court. The primary judge having decided to uphold the respondent's motion made that step unnecessary. 9 The primary judge analysed the application in accordance with his understanding of the test discussed by this Court in R v Saleam [1999] NSWCCA 342. His Honour accepted that there was a two stage process which involved the subpoenaing party identifying that there was a legitimate forensic purpose and establishing that "it is on the cards" that the documents sought would materially assist his or her case. 10 With respect to the issue of "legitimate forensic purpose" his Honour said that there were four matters requiring consideration: 1. The issue or issues in dispute at the trial; 2. What the subpoenaing parties' case may be on that issue, or those issues; 3. How the subpoenaed documents will assist the subpoenaing party in its case; and 4. What are the grounds for believing that documents will in fact so exist. 11 The applicant did obtain access to some documents from the police file. One of those documents contains a note from Det Snr Const Robb which records a meeting with the applicant on 17 April 2009 at Centennial Park. The note is as follows: "At 12.30 pm 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 knee-length shorts and glasses." 12 It was accepted before this Court that the "unidentified female" was Melanie Brown. The transcript of the discussion at the meeting which was recorded on a listening device includes some conversation from Ms Brown. Apart from references to food and drink she is recorded as asking the undercover officer whether he had received the samples she had sent. The officer responds by indicating that someone else had received them but that he had been told that it was "good." 13 The primary judge concluded that the sole basis for the application appeared to be that Ms Brown had introduced the applicant to the undercover officer who, having been referred to in the transcript as "an unidentified female" when her identity was known to the police, raised the reasonable suspicion that she was an undercover officer or a police informer. His Honour emphasised the fact that apart from the one occasion to which I have referred there was no other time at which Ms Brown was recorded as being present when arrangements were being made between the applicant and the undercover operative for the sale of drugs. Furthermore, his Honour found that there was no evidence of Ms Brown having coerced, pressured, or enticed the applicant to either commence dealing with the undercover officer or continuing in any way with any of the offences which he had committed. His Honour did accept that if Ms Brown had been acting as an agent of the authorities and she did coerce, pressure or entice the applicant into committing offences he would not otherwise have committed, this would be particularly relevant on sentence. 14 Before this Court the applicant submitted that when a challenge such as the present is made to a subpoena, the decision in Principal Registrar of the Supreme Court v Tastan (1994) 75 A Crim R 498 at 504 requires a court to analyse the matter in two stages. Firstly the party who has initiated the subpoena must establish that there is a legitimate forensic purpose for which the documents are sought and secondly that "it is on the cards" that the documents will materially assist his or her case (see Saleam at [11]; Attorney-General (NSW) v Chidgey [2008] NSWCCA 65; (2008) 182 A Crim R 536 at [64]). 15 It was submitted that the applicant had satisfied both of these criteria. It was submitted that the documents were sought in order to establish that Ms Brown had encouraged the applicant to supply drugs to the undercover officer and did so when she was in collaboration with the investigating police. It was submitted that "it was on the cards" that the documents would assist the applicant's case because of the known circumstance that Ms Brown had introduced the applicant to the undercover officer and had continued to be involved in communications with the applicant concerning the drug deals, but was never arrested or charged. Furthermore, it was submitted that the production of a significant volume of documents coming within the terms of the subpoena and produced to the Court, in itself indicated that the applicant was not fishing and that there were documents in existence in at least two categories which would assist the applicant. 16 In the course of his written submissions on behalf of the applicant, senior counsel said that, although evidence to this effect was not tendered, the applicant "is, of course, directly aware of his own knowledge of the inducements and enticements made by Ms Brown to him continue to deal with the undercover officer in the face of his reluctance to do so, particularly in relation to the last dealing in which the undercover officer had gone to the applicant to supply a kilogram of cocaine and he can give evidence of those matters." Quite apart from the applicant's own knowledge his counsel adverted to six matters which were said to be clear indicators in the evidence that Ms Brown was acting in collusion with the police. These were: a. The presence and participation of Ms Brown in the meeting in Centennial Park on 17 April 2009 to which I have previously referred; b. The continued reference by the police in statements to "an unidentified female" which the police knew to be Ms Brown; c. The telephone conversations of the applicant were intercepted during the investigation and the police would have been aware of numerous conversations between the applicant and Ms Brown concerning the supply of drugs by the applicant to the undercover officer; d. The interception also captured numerous SMS messages to similar effect; e. Although the involvement of Ms Brown was obvious, she was "written out" of the brief of evidence served by the prosecution; and f. Ms Brown was never arrested or charged in relation to the matters with which the applicant has been charged. 17 It was submitted that these matters were sufficient to show that it was "on the cards" that the documents described in the subpoena are likely to contain records of communications between the investigating police and Ms Brown and accordingly the applicant was "not fishing" for the purpose of ascertaining whether Ms Brown was an informant. Furthermore, it was submitted that as a number of documents had been provided to the Court it was perverse that the Court should rule on the matter before first examining those documents. 18 The applicant accepts that if Ms Brown had acted on her own initiative that would be the applicant's "bad luck" and would have minimal relevance to his sentence. However, if Ms Brown had dealt with the applicant as a result of collaborating with investigating police, it was submitted that his case for a reduced sentence would be much stronger, but he requires access to the police documents if he is to effectively make that submission. Accordingly the applicant submitted that his Honour was in error in concluding that there was a lack of evidence to support the submission that there was a legitimate forensic purpose. It was submitted that his Honour had blurred into one general issue the two steps, identified in Saleam and Chidgey, which are involved in assessing the claim for access to the documents, namely the expression of the legitimate forensic purpose, and then, whether it had been shown that it "was on the cards" that the documents would assist the applicant's case. 19 To my mind there are difficulties in the applicant's present position. I accept that the conjunction of circumstances put forward by the applicant to which I have referred in [16] raises a suspicion that Ms Brown may have had a relationship with the investigating police. However, the applicant has chosen not to place any evidence before the Court which supports the submission that Ms Brown took any step to coerce, pressure or entice him to deal with the undercover officer. Although that assertion is made by his counsel, before I would be satisfied that the applicant had established that it was "on the cards" that the documents the subject of objection would assist his case, there would need to be at least some evidence of the influence which Ms Brown may have had in respect of the applicant's actions. 20 In written submissions on behalf of the respondent senior counsel acknowledged that before the primary judge the resolution of the matter turned upon the question of whether the applicant had demonstrated, beyond mere suspicion or speculation, that it was "on the cards" that the documents would assist in proving the assumed facts and therefore materially assist his case. It was submitted that the highest the applicant's case rose was a suggestion that Ms Brown may have facilitated the detection and obtaining of evidence to prosecute the applicant but there was no evidence that she had encouraged him to commit the offence. 21 In my opinion this submission should be accepted. Although the matter is attended with significant suspicion the evidence does not presently suggest that the offence might not have been committed had the police not in some way facilitated it (Taouk v R (1992) 65 A Crim R 387 at 403). 22 Although the application to this Court should be dismissed, it would seem that the resolution of the present application may not be an end to the matter. If the applicant continues to assert that Ms Brown acted so as to coerce, pressure or entice him to deal with the undercover officer, no doubt he can bring evidence of her actions which have had the relevant effect. Depending upon the nature of that evidence, it may be possible to infer from the matters to which I have referred in [16], together with the fact that a volume of documents has been produced to the Court in answer to the relevant paragraphs of the schedule to the subpoena, that it is "on the cards" that the documents would materially assist the applicant's case on sentence. However, that would depend upon the issue of a fresh subpoena and, if there is a challenge by the respondent, the evidence tendered in support of the applicant's position. 23 There is one further matter to which I should advert, which was not referred to in the course this appeal. Paragraph 4 of the schedule refers to "all written or electronic records of communications between any officer of the NSW police and Melanie Brown." This is extremely wide and may capture documents which have no relevance to the present applicant. No doubt if a new subpoena is contemplated this issue can be addressed. 24 However, in my opinion the present application should be dismissed and the applicant ordered to pay the respondent's costs. 25 HISLOP J: I agree with McClellan CJ at CL. 26 BARR AJ: I agree with McClellan CJ at CL. ********** 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.