Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Attorney General (NSW) v Lipton [2012] NSWCCA 156 Hearing dates: 25 May 2012 Decision date: 20 July 2012 Before: Basten JA at [1]; Hoeben JA at [70]; McCallum J at [71] Decision: (1) Set aside any order made by Finnane DCJ in the District Court at the time of or consequent upon the judgment delivered on 24 February 2012 requiring the Commissioner of Police to produce and permit the respondent to have access to documents pertaining to the relationship between police and Ms Melanie Brown. (2) Direct that if such documents are in the custody of the Court, they be returned to the Commissioner of Police. (3) Direct that any further application for production of such documents be made by way of a fresh subpoena issued for that purpose. Catchwords: APPEAL - criminal - appeal against interlocutory judgment or order - ruling with respect to admissibility of evidence not a judgment or order - whether ruling on objection to production of documents in answer to subpoena is amenable to appeal - Criminal Appeal Act 1912 (NSW), s 5F; Evidence Act 1995 (NSW), s 131A EVIDENCE - public interest immunity - whether party called to produce material not the party asserting public interest immunity - discussion of State of New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60; Derbas v R [2012] NSWCCA 14 - Evidence Act 1995 (NSW), ss 130 and 131A EVIDENCE - public interest immunity - offender sought material relating to conduct of suspected informer for use at sentencing hearing - whether public interest immunity capable of being overcome for the purposes of sentencing - whether appellate court is in a position to perform requisite balancing exercise - whether offender demonstrated a real and not hypothetical issue with respect to sentence - Evidence Act 1995 (NSW), s 130 Legislation Cited: Criminal Appeal Act 1912 (NSW), s 5F Evidence Act 1995 (NSW), ss 130, 131A Cases Cited: Alister v The Queen [1984] HCA 85; 154 CLR 404 Attorney General (NSW) v Chidgey [2008] NSWCCA 65; 182 A Crim R 536 Attorney General v Kaddour [2001] NSWCCA 456 Attorney General (NSW) v Stuart (1994) 34 NSWLR 667 Cain v Glass (No 2) (1985) 3 NSWLR 230 D v National Society for the Prevention of Cruelty to Children [1978] AC 171 Derbas v R [2012] NSWCCA 14 Lipton v R [2010] NSWCCA 175 Marconi's Wireless Telegraph Co Ltd v The Commonwealth [No 2] [1913] HCA 19; 16 CLR 178 Marks v Beyfus (1890) 25 QBD 494 Nagi v Director of Public Prosecutions (NSW) [2009] NSWCCA 197 R v Fandakis [2002] NSWCCA 5 R v Lipton, Richard [2010] NSWDC 187 R v Richard Lipton (No 2) [2010] NSWDC 295 R v Steffan (1993) 30 NSWLR 633 Regina v Richard Lipton [2011] NSWCCA 247 Sankey v Whitlam [1978] HCA 43; 142 CLR 1 State of New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60 WO v Director of Public Prosecutions (NSW) [2009] NSWCCA 275 Texts Cited: J Anderson, N Williams SC, L Clegg, The New Law of Evidence (2nd ed, LexisNexis Butterworths, 2009) at [131A.3] Category: Principal judgment Parties: Attorney General for New South Wales (Applicant) Richard Alexander Lipton (First Respondent) Director of Public Prosecutions (NSW) (Second Respondent) Representation: Counsel: R J Bromwich/R J Grady (Applicant) P S Hastings QC/K H Averre (First Respondent) Solicitors: I V Knight, Crown Solicitor (Applicant) James A Moustacas & Co (First Respondent) Director of Public Prosecutions (Second Respondent) File Number(s): CCA 2009/78658 Decision under appeal Jurisdiction: 9101 Date of Decision: 2012-02-24 00:00:00 Before: Finnane DCJ File Number(s): DC 2009/78658 HEADNOTE [This headnote is not to be read as part of the judgment] The respondent entered pleas of guilty in respect of two offences involving the supply of not less than a large commercial quantity of a prohibited drug. He has yet to be sentenced for those offences. The respondent sought access to any documents in the custody of the Commissioner of Police recording communications between members of the police force and Ms Brown, a person he suspected of being a police informer. His counsel suggested that he intended to allege at the sentencing hearing that Ms Brown had encouraged him to increase the quantity of drugs in each successive transaction. The Commissioner of Police produced certain documents to the Court but objected to their disclosure to the respondent on the basis of public interest immunity. On 24 February 2012 Finnane DCJ indicated that he would order that the documents be disclosed to the respondent. The Attorney General appealed to this Court, pursuant to Criminal Appeal Act 1912 (NSW), s 5F, against the interlocutory order of Finnane DCJ. The issues for determination on appeal were: (i) whether a claim of public interest immunity involving an informer is capable of being overcome for the purposes of a sentencing hearing, and if so (ii) whether the material sought met the threshold for disclosure. The Court held (per Basten JA, Hoeben JA and McCallum J agreeing), allowing the appeal: In relation to (i) 1. Where non-production is necessary in order to protect the identity of the informant and the information disclosed by an informant, it may be doubted that a rule existed under the general law that the only available exception is the public interest in preventing an accused person properly defending himself or herself against conviction: [36]-[37] Marks v Beyfus (1890) 25 QBD 494; D v National Society for the Prevention of Cruelty to Children [1971] AC 232 referred to. 2. The balancing exercise required by Evidence Act 1995 (NSW), s 130 is not to be constrained by unexpressed rules derived from the common law: [39] In relation to (ii) 3. The primary judge erred in his consideration of the factors relevant to the making of a disclosure order: [49]-[58] 4. This Court is not in a position to determine whether the material met the threshold for disclosure. Without the benefit of evidence from the respondent as to any statement of Ms Brown that influenced him in some manner, there is a risk that the Court might miss an arguable point: [62] 5. The respondent has not demonstrated that the material may be relevant to a real and not hypothetical issue with respect to his sentencing, such as a specific enticement which affected his conduct: [68] Judgment 1BASTEN JA: On 5 November 2009 Mr Richard Lipton ("the respondent") entered pleas of guilty in respect of two offences involving the supply of not less than a large commercial quantity of a prohibited drug. The first charge related to 1.101 kilograms of cocaine; the second charge related to 586.9 grams of MDMA. He has yet to be sentenced for those offences. Sentencing has been delayed because the respondent has sought (and not so far obtained) access to any documents in the custody of the Commissioner of Police recording communications between members of the police force and Ms Melanie Brown. (The precise description of the class of documents sought has varied over time.) 2Ms Brown had been in a relationship with the respondent prior to the time of the offences. She was suspected by him, at least after his arrest, of providing information to the police, although his arrest resulted from the recipient of the drugs being an undercover police officer. 3The present appeal is brought by the Attorney General from an interlocutory decision of Finnane DCJ ordering the Commissioner to provide the respondent with access to certain documents. The appeal should be upheld and the order set aside. To explain why that should occur requires reference to the procedural history of the matter. Procedural history 4The procedural history of this matter has been fraught; it has been attended by missteps at almost every stage of the process. This Court does not have the full procedural history before it. 5On 25 November 2009 a subpoena was issued to the Commissioner of Police on behalf of the respondent seeking four categories of documents. The Commissioner, by notice of motion filed in the District Court, sought to set aside paragraphs 1, 2 and 4 to the schedule to the subpoena: R v Lipton, Richard [2010] NSWDC 187 at [1] (King DCJ). Neither the subpoena nor the notice of motion is otherwise before this Court. However, as appears from the judgment of this Court in Lipton v R [2010] NSWCCA 175 at [4], paragraph 4 in the schedule referred to "[a]ll written or electronic records of communications between any officer of the NSW police and Melanie Brown". 6Again as explained by King DCJ, the principal ground in the motion to have the subpoena set aside was the absence of any legitimate forensic purpose for the production of the documents. A second ground, if the Court were satisfied as to legitimate forensic purpose, was that "any documents would be protected by a claim of public interest immunity": at [5]. King DCJ was not satisfied that there was a legitimate forensic purpose and ordered that paragraphs 1, 2 and 4 of the schedule to the subpoena be set aside: at [26]. As accepted by King DCJ and explained in this Court by McClellan CJ at CL (Hislop J and Barr AJ agreeing) there might have been a legitimate forensic purpose in establishing that, if Ms Brown took steps to coerce, pressure or entice the respondent to deal with the undercover officer to an extent or in a manner which he would not otherwise have done, Ms Brown had acted as an agent of the authorities. Such conduct could have provided an element of mitigation of sentence. However, there was no evidence from the respondent to demonstrate that Ms Brown had encouraged him to commit the offences, absent which the question of her relationship with the authorities did not arise. Accordingly, this Court upheld the ruling of King DCJ and dismissed the application for leave to appeal. 7McClellan CJ at CL anticipated that the setting aside of those paragraphs of the subpoena might not be an end of the matter as the respondent might issue a further subpoena and bring evidence that Ms Brown had acted to coerce, pressure or entice him to deal with the undercover officer: at [22]. Depending on the nature of that evidence, the reasoning continued, it might be possible to infer from matters already known which suggested that Ms Brown was acting in collusion with the police, "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 the documents might materially assist the respondent's case on sentence. His Honour further noted that paragraph 4, in its original form, was "extremely wide and may capture documents which have no relevance to the present applicant": at [23]. 8The initial response of the Commissioner to the subpoena, as revealed above, is puzzling for two reasons. First, the production of documents to the Court (however that occurred) was inconsistent with the application to "set aside the subpoena". Secondly, and more importantly, the production of documents identified as answering the description in paragraph 4 of the subpoena, namely recording communications between Ms Brown and the police, constituted an implicit acceptance of the fact of that relationship. To then claim public interest immunity on the basis that disclosure of the documents might reveal the existence of a police informer was, in effect, to disclose precisely that which was sought to be protected. 9The Court is not privy to the decision-making which underlay those actions, but they sowed the seeds for more than two further years of attempts to undo the consequences. It is appropriate, therefore, to note that there were alternative courses available which could have avoided the unfortunate consequences which have come to pass. 10Relevantly for present purposes, there are two broad categories of case involving police informers and disclosure of their identity. In the one case, the accused suspects, or even knows, that the police have relied upon information supplied to them by third parties, but does not know the identity of the informant. The other category, which includes the present case, arises where the accused knows very well the identity of the individual suspected of being an informer, but does not know whether that individual has a relationship with the police. In the latter case, to disclose the existence of documents recording that relationship may be to concede the very point which the claimed immunity is designed to preserve. The situation is not unique: it arose in the seminal case of Alister v The Queen [1984] HCA 85; 154 CLR 404. In Alister, the case against the accused had depended significantly on the evidence of a Mr Richard John Seary, who had joined the Ananda Marga, of which the accused were members, as an undercover agent. In order to attack his credibility, the accused had sought access to any document relating to the applicants supplied by Mr Seary to ASIO. Whether he was an agent for ASIO was not known. The trial judge set aside the subpoena directed to ASIO. The appeal challenged that order. However, as noted by Brennan J, at 452, a different procedural course might have been appropriate: "Perhaps the order to set the subpoena aside was wrong in any event, the appropriate order being an order excusing the officer in charge of ASIO from the obligation to state whether ASIO had possession of documents answering the description set out in the subpoena and from the obligation to produce any such documents." That course should have been adopted by the police in the present case, but was not. 11It is convenient now to return to the procedural history. Rather than issue a further subpoena, the respondent sought a stay of the sentencing proceeding "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": R v Richard Lipton (No 2) [2010] NSWDC 295 (Finnane DCJ) at [7]. (The notice of motion itself, dated 11 October 2010, was not before this Court.) The District Court did not make an order in that form, but did order a stay until the Director of Public Prosecutions had sought and obtained from the police all documents pertaining to the relationship between the police and Ms Melanie Brown; had formed an opinion as to whether the documents may be relevant to any matter of sentence and had communicated that opinion to the respondent's lawyers. In the course of his judgment Finnane DCJ stated: "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." 12It will be necessary to return to that reasoning when reconsidering the question of legitimate forensic purpose and the consistency of that reasoning with the 2010 decision of this Court. The order was the subject of an appeal by the Director of Public Prosecutions, which was dismissed: Regina v Richard Lipton [2011] NSWCCA 247. Judgment was delivered on 17 November 2011. 13On 8 December 2011 the Solicitor for Public Prosecutions wrote to the respondent's solicitor advising that the Director had "reviewed all documents pertaining to the relationship" and had formed the opinion that "there are documents amongst them that may be relevant to a matter of sentence of the offender" but that those documents were, in the Director's view, subject to a claim of public interest immunity. 14Despite the limitations on the views expressed by the Director, namely that only some of the documents pertaining to the relationship between the police and Ms Brown may be relevant to sentence, it appears that the Commissioner then abandoned any argument based on lack of a legitimate forensic purpose. Further, although the subpoena, originally issued on 25 November 2009, was potentially wider than the terms of the stay order and the relevant paragraph had in any event been set aside at a hearing on 16 December 2011 in the District Court, senior counsel for the respondent called upon the subpoena and the Commissioner's representative handed up a bundle of documents which had been prepared in response to the subpoena, but sought to maintain the objection based on public interest immunity. (Whether the documents so produced were the same as those which had apparently been produced to the Court in 2010 is not clear.) The claim based on immunity was formalised by a notice of motion returnable on 16 December 2011, supported by both an open and a confidential affidavit. Paragraph 4 of the open affidavit stated: "The Commissioner makes a claim for public interest immunity in relation to the disclosure of information, whether adduced in evidence or contained in a document, that could reveal or tend to reveal the identity of any person who has assisted police in their investigations or that could reveal details of any information in police intelligence holdings available for use in current or future criminal investigations." 15The affidavit further stated that the deponent, being an Assistant Commissioner of Police, had no objection to the Court inspecting the confidential exhibit and affidavit but submitted that access to the confidential material "beyond the Court would be as harmful to the public interest as would be the disclosure of the information sought to be protected": paragraph 15. The reference to "the Court" in this context was clearly intended to be a reference to the judge, as the orders sought in the motion, in support of which the affidavit was read, included a denial of access "to all parties to the proceedings": order 4(b). 16After receiving the material, Finnane DCJ purportedly closed the court: Tcpt, 16/12/11, p 3 (6). There was, however, a dispute as to whether the respondent's father should be entitled to remain in the Court. At the request of the respondent's counsel, the judge indicated that he would allow the respondent's father to remain. In response to an incomplete request by counsel for the Commissioner to be heard on that issue, the judge stated: "I'm not going to publicly reveal what's in the documents am I, I mean the Courts have frank discussions even in a closed court, I don't reveal what's in them. I think that would be entirely wrong were I to say Well look let's be frank, let me tell you all what's in these. I can't really do that ...." 17Senior counsel for the respondent then identified the forensic purpose to be relied on in the following terms at pp 4-5: "More precisely the position is that this was an operation under the auspices of the New South Wales Crime Commission carried out by the New South Wales police and it involved what I've seen ... described as a well known technique of ramping up the amounts of the drug until such time as the amounts in total supplied by the offender exceeded the large commercial limit and of course the minute that that happened they were then arrested. ... The precise point that Mr Lipton makes is that he got out of his depth and out of his league when the amounts got bigger but Melanie Brown was encouraging him to continue to deal with the undercover officer because she said he could be trusted and because she needed the money because she had lost her job and he ought to get on with it." 18There then ensued debate with counsel for the Commissioner in the course of which the primary judge made remarks which could have been understood to be disclosing the contents of the documents before a member of the public who would have been in a position to relay the remarks to the respondent (and indeed the world at large). At the end of the hearing, the primary judge stated in open court (Tcpt, p 19 (45)): "I order a transcript from today. It can be made available to each of the parties. Mr Lipton can have a free copy, but I make it plain: I will not make that transcript available to the press." 19To the extent that the order closing the Court had not already been subverted, that step effectively revoked it. The Court reconvened on 24 February 2012, at which stage the primary judge delivered a judgment. It appears from an exchange with counsel for the Commissioner after the commencement of the delivery of the judgment that although the Court was again "closed", the judge allowed the respondent's parents and brother to remain: Tcpt, 24/02/12, p 2. No constraint was placed on communication by them to any person. His Honour then indicated that some of the material should be suppressed. He said (Tcpt, p 5): "The material showing contact between her and police officers, what she said to them about the offender, the information that she passed on, in my opinion, is material which can be and should be shown to the offender's legal representatives because it is possible that it may assist them in some way in presenting their arguments on sentence. In my opinion, the interests of the offender being able to present a proper case outweigh any possible claim of public interest in suppression of the information and, therefore, I proposed to reveal that material, that is, the material that I have looked at which I consider should be revealed. I do not have it here at this very minute and I will have to make it available in an edited form. The use that can be made of it is a matter for the parties. I would make an order that the legal representatives of the parties can use it for these proceedings, and to the extent necessary to do so they can discuss the material with their client. But the material cannot be used for any other proceedings and if they judge there is no use they can make of the material, it should be handed back to the Court and will be given back, then, to the police." 20Following the delivery of the judgment, it appears that the Court remained "closed". Counsel for the Commissioner then sought a stay of the "orders" for 28 days to enable a consideration of an appeal. The primary judge determined that he would adjourn for a period of seven days to allow the Commissioner to consider his position, whilst commenting in pejorative terms on the application. He then directed that his "remarks today be taken out and made available to the parties forthwith": Tcpt, p 2 (13). After that, and following some further discussion, counsel for the Commissioner noted that it might be necessary to obtain the documents which were to be released and the editing which had been proposed. The primary judge then responded that he was simply deleting material which might be used to locate Ms Brown and proceeded to describe the contents of the material to be released, in summary terms: Tcpt, p 3 (12)-(21). That statement would also have been made available, presumably, to each of the parties "forthwith". Issues on appeal 21The stay of the release of the documents themselves has continued. On 30 March 2012 the Attorney General filed a notice of appeal against the judgment and orders in the District Court made on 24 February 2012, the appeal being pursuant to s 5F of the Criminal Appeal Act 1912 (NSW). 22The notice of appeal did not identify with any degree of particularity the grounds of the appeal. However, the appellant's written submissions of 4 May 2012 allow the grounds to be summarised in the following terms: (1) a valid claim of public interest immunity involving an informer can only be overcome if the material has a sufficient bearing on the question of the guilt or innocence of the accused, and is not capable of being overcome merely for the purposes of a sentencing hearing; (2) in the alternative, if the immunity may be lost for the purposes of a sentencing hearing, the material sought in the present case does not meet the threshold for disclosure, and (3) the primary judge failed to give adequate reasons for his decisions. 23In the event that the first two grounds failed, but the third ground succeeded, the Attorney submitted that the material should be reconsidered by this Court and a decision made as to what if any documents should be disclosed to the respondent. 24For the reasons given below, ground 1, asserting an absolute limitation on the power to disclose, should be rejected. Grounds 2 and 3 may be considered together, and should be upheld on the basis that the reasons of the primary judge reveal the wrong test was applied. That being so, the objection to disclosure must be reconsidered. In this context, it will be necessary to have regard to the procedural history and the disclosures made by Finnane DCJ in court at a time when the court was not closed to the public, in the accepted sense of that term. Jurisdiction of court 25An appeal lies as of right at the instance of the Attorney General (and the Director of Public Prosecutions) in respect of an "interlocutory judgment or order" which is given or made "in proceedings". A ruling with respect to the admissibility of evidence is generally considered not to be such a judgment or order, although clearly made in the proceedings: R v Steffan (1993) 30 NSWLR 633. An objection to evidence based on public interest immunity will frequently give rise to an evidential ruling as to admissibility in the course of proceedings. However, such objections may also arise in respect of production of documents in answer to a subpoena or other form of court process or court order. Rulings on such objections have uniformly been treated as falling within the scope of s 5F: Attorney General (NSW) v Stuart (1994) 34 NSWLR 667 at 673C-D (Hunt CJ at CL, Studdert J agreeing) and 689B-C (Smart J); Attorney General v Kaddour [2001] NSWCCA 456 at [2] (Sully J, Spigelman CJ and Adams J agreeing); R v Fandakis [2002] NSWCCA 5 at [10] (Barr J, Ipp AJA and Hidden J agreeing); Attorney General (NSW) v Chidgey [2008] NSWCCA 65; 182 A Crim R 536 at [33] (Beazley JA, James and Kirby JJ agreeing); Nagi v Director of Public Prosecutions (NSW) [2009] NSWCCA 197 at [25]-[27]; WO v Director of Public Prosecutions (NSW) [2009] NSWCCA 275 at [59]; Derbas v R [2012] NSWCCA 14 at [1] (Meagher JA, Hoeben and Rothman JJ agreeing). 26Although the court is now required to determine an objection to production "as if [it] were an objection to the giving or adducing of evidence" - see Evidence Act 1995 (NSW), s 131A, discussed below - there was no submission in this Court that the line of authority as to an appeal under s 5F was affected by that provision. Accordingly, it should be accepted that the appeal was properly brought by the Attorney, as of right. Principles as to public interest immunity 27A further preliminary issue arose in relation to the principles governing the substantive issue. In a supplementary submission dealing with the question of jurisdiction, senior counsel for the Attorney submitted that the issue was to be addressed by reference to s 130 of the Evidence Act, which section, although dealing with the admissibility of evidence, was applicable by virtue of s 131A of the Evidence Act. Section 131A constituted a device by which the question of production could be assessed by reference to the test applicable to admissibility. As a matter of principle, that approach had much to commend it. However, it was not the approach adopted by this Court in Derbas, a judgment delivered on 21 February 2012. That case, like the present matter, involved a claim of immunity from disclosure in the public interest made by the Commissioner of Police. Meagher JA rejected the Attorney's submission that the matter was to be addressed by reference to s 130 of the Evidence Act, concluding that s 130 was not engaged and that it was necessary to address the application for immunity by reference to common law principles: at [6]. 28Although the Attorney also submitted in Derbas that nothing turned on the answer to this question, that may not be right. In support of ground 1, the Attorney argued that there was an inflexible rule that once the identity of an informer was raised, the only basis for rejecting the objection was the need for disclosure to show that the defendant was innocent of the offence: Cain v Glass (No 2) (1985) 3 NSWLR 230 at 248 (McHugh JA, Kirby P agreeing). That was said to be a principle of the common law; even if that were right, it is less clear that it is a principle which fits within the language of s 130. The irony of the Attorney's position is thus that if s 130 is applied, as he submits it should be, he may fail on ground 1. 29Under s 131A, if a person is required by a subpoena to produce a document of a kind "referred to in" Division 3 (which includes s 130) and "the person objects to ... providing that document", the court must determine the objection by applying the provisions of s 130 with any necessary modifications "as if the objection ... were an objection to the giving or adducing of evidence". (Once the objection is treated as an objection to giving evidence, it is not clear what modifications to, say, s 130 are contemplated.) 30As noted by the writers of a standard text on the Evidence Act, the use of "the circuitous drafting device" adopted in s 131A "gives rise to fundamental problems": J Anderson, N Williams SC, L Clegg, The New Law of Evidence (2nd ed, LexisNexis Butterworths, 2009) at [131A.3]. One problem noted by the authors is that the section appears to operate only where the person required to produce the document is the person who objects to production. If the first person is not the holder of the privilege, the section may not be engaged. 31This approach has been accepted in relation to public interest immunity and a statutory corporation. Thus, in State of New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60 at [26] Allsop P stated (with the agreement of Hodgson JA and Sackville AJA): "The State submitted that the terms of s 131A(1) were not engaged. That was so, it was submitted, because the State, which had the carriage of the upholding of the immunity was not a person subject to a disclosure requirement who objects to giving that information or document. The PTTC [being the statutory corporation] is the person subject to the disclosure requirement; all the documents are discovered by it and are within its custody, power and control. The State is seeking to rely upon the immunity, not the PTTC, and the State is not subject to the disclosure requirements." 32That approach was applied in Derbas at [8], in respect of a subpoena to produce addressed to the Registrar of the Local Court. Objection was taken by the Commissioner for Police who sought to intervene in the proceedings in the District Court. Meagher JA noted that on a question of production, s 130 did not in its terms apply and continued: "Nor did s 131A operate to require the primary judge to determine the Commissioner's objection by applying the provisions of s 130. That is because s 131A only applies if the 'person' required to produce the document is 'the person' who objects to the provision of the document .... In State of New South Wales v Public Transport Ticketing Corporation ... the person producing documents by way of discovery (the Public Transport Ticketing Corporation) and the person making the claim for immunity (the State) were distinct juristic entities, with the result that ss 130 and 131A were not engaged. That is also the position here. The person producing the documents (the Registrar) and the person making the claim for immunity (the Commissioner) were not the same." 33Approaching the present matter in the terms accepted in these two recent cases, a different result obtains. The subpoena was addressed to the Commissioner and it was the Commissioner who raised the objection. There was no objection in Derbas to the Commissioner raising the objection, as distinct from the State, and it may well have been that the Court in Derbas was satisfied that the Commissioner and the State were relevantly the same entity. 34Given the unity of the producer and the objector in the present case, it is not necessary to raise any question as to the correctness of those decisions, although whether they achieve a sensible result may be debated. Significantly, there was no reference to the terms of s 130(2) providing that the court might direct that the document not be adduced as evidence "either on its own initiative or on the application of any person (whether or not the person is a party)". This provision is consistent with the common law principle which allows an objection to be taken by a private person, whether witness, litigant or person subject to an order for production, and obliges the court to consider the issue for itself, and indeed to do so whether or not objection is raised: Sankey v Whitlam [1978] HCA 43; 142 CLR 1 at 44 (Gibbs ACJ), 58-59 and 68 (Stephen J), 100 (Mason J) referring to Marconi's Wireless Telegraph Co Ltd v The Commonwealth (No 2) [1913] HCA 19; 16 CLR 178 at 192 (Barton J) and 206 (Isaacs J). As it is clear that the person required to produce documents is entitled to object to such production on the basis of public interest immunity, s 131A(1) would be satisfied if such objection were taken. Public interest immunity is not a "privilege", as has long been recognised, and does not "belong" to any individual or entity, although in many cases an objection by a private individual without the support of the government of the day will fail: see, eg, Sankey v Whitlam. In any event, such matters do not affect the outcome in the present case, where the Commissioner was the recipient of the subpoena and the Commissioner objected to production. The Court was therefore required to determine the objection by application of s 130. Applicable principles - Evidence Act, s 130 35Section 130, so far as presently relevant, provides: "130 Exclusion of evidence of matters of state (1) If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence. ... (4) Without limiting the circumstances in which information or a document may be taken for the purposes of subsection (1) to relate to matters of state, the information or document is taken for the purposes of that subsection to relate to matters of state if adducing it as evidence would: ... (c) prejudice the prevention, investigation or prosecution of an offence, or ... (e) disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State, or (f) prejudice the proper functioning of the government of the Commonwealth or a State. (5) Without limiting the matters that the court may take into account for the purposes of subsection (1), it is to take into account the following matters: (a) the importance of the information or the document in the proceeding, (b) if the proceeding is a criminal proceeding - whether the party seeking to adduce evidence of the information or document is a defendant or the prosecutor, (c) the nature of the offence ... or defence to which the information or document relates, and the nature of the subject matter of the proceeding, (d) the likely effect of adducing evidence of the information or document, and the means available to limit its publication, (e) whether the substance of the information or document has already been published, (f) if the proceeding is a criminal proceeding and the party seeking to adduce evidence of the information or document is a defendant - whether the direction is to be made subject to the condition that the prosecution be stayed." 36The next step in the Attorney's argument is that where non-production is necessary in order to protect the identity of the informant and the information disclosed by an informant, the only available exception is the public interest in preventing an accused person properly defending himself or herself against conviction. This principle has been differently expressed from time to time, but it is not necessary to consider such variations in language: compare Marks v Beyfus (1890) 25 QBD 494 at 498 (Lord Esher MR) and D v National Society for the Prevention of Cruelty to Children [1978] AC 171 at 232 (Lord Simon of Glaisdale). 37Whether, even at common law, such a rule existed may be doubted. The importance of private informers to law enforcement has not diminished over the decades and, arguably, only the availability of reasonably watertight assurances, well founded in the law, can ensure the continued flow of such information. On the other hand, that principle cannot become a protection for unchallengeable and potentially malicious complaints which may lead to a wrongful conviction. Hence the exception where the court is satisfied that disclosure is necessary to avoid a wrongful conviction. However, clear applications of established principle do not demonstrate the absence of other forms of exception: they merely demonstrate the high value placed on the protection of informers. 38In practice, informers fall into different categories, as do the threats attendant upon disclosure. Each case must depend, to a certain extent, upon its own facts, although the importance of maintaining trust in the ability of a police force to offer protection to informers is a consideration of general application. 39Whatever may be the principle applicable under the general law, the test to be applied under s 130 is clearly a balancing exercise which requires the court to be satisfied that, relevant to the present circumstances, the public interest in preserving secrecy or confidentiality in relation to a category of documents outweighs the public interest in their production. In undertaking that balancing exercise, the court is required to take into account those factors identified in sub-s (5) as are relevant in the circumstances of the case. That exercise is not to be constrained by unexpressed rules derived from the general law, although the same result may be expected on either approach. Application of principles 40The present case had two notable aspects. First, the respondent had no doubt about the identity of Ms Brown; his suspicion was that she was a police informer. Thus he sought records of communications between her and the police in order to establish the correctness or otherwise of his suspicion. 41The second notable feature was that, as explained above, the police did not in fact object to production of documents apparently falling within the scope of the subpoena: rather, they produced the documents and objected to any person other than the Court having access to them. Accordingly, the respondent is now aware that there is a significant volume of communications falling within the category of documents pertaining to the relationship between the police and Ms Brown. 42There may be an issue as to the precise scope of the term "informer", in this context. It is no longer used to refer to a person who lays an information against an offender and is paid by the State for so doing, although that was its meaning in the phrase "common informer". It is now used to refer to a person who gives information to the police, usually about criminal activity. The uses to which such information may be put is quite variable, depending on its nature. 43It is arguable that the mere fact that police have had a volume of communications with a particular individual does not mean that he or she is a police informer. The police may have engaged over a lengthy period in the strategy of seeking to obtain information from the person, only to be supplied with misinformation. On the other hand, as the further result of the condition of the stay, the respondent believes that some of the information contained in the documents may be of genuine forensic interest in relation to his sentencing proceedings. It is quite unlikely that such an inference would be drawn from documents which disclose that the relationship of Ms Brown with the police was other than that of an informer. That inference has arisen entirely as a result of the order made by way of conditional stay, upheld by this Court in the 2011 appeal. 44It is not the function of this Court to say whether the stay order made by Finnane DCJ was misconceived and whether the 2011 decision of this Court was wrong. However, the fact that the respondent can now establish certain inferences, at least on the balance of probabilities, is a factor to be weighed in the balance in considering whether the presently impugned disclosure order made in the District Court was erroneous. 45Three further matters should also be noted. First, although the Director indicated that some of the documents may be relevant to a matter of sentence of the respondent, he has not indicated what proportion of those sought fall into that category. It may be a large proportion or it may be quite a small proportion. Secondly, he has not stated how they may be relevant: they may demonstrate that the police were urging Ms Brown to encourage the respondent to sell larger and larger quantities of drugs, or they may reveal the reverse, or they may reveal nothing in this regard. 46Thirdly, the Director indicated a view that they were properly subject to a claim for public interest immunity. He did not express any view as to the basis of that claim. He may have assumed, for the purposes of the exercise, that the respondent did not know whether there had been any significant communications between Ms Brown and the police or the opinion may have been formed for reasons unrelated to the offences to which the respondent pleaded guilty. 47Before identifying the reasons given by the primary judge for the order foreshadowed on 24 February 2012, it is necessary to note that passages in the reasons appear to reveal the contents of the documents sought to be protected. Despite an application by counsel for the Commissioner, in the sense already explained the reasons were not delivered in closed court. Further, as explained, subsequent remarks on the transcript which appear to reveal the contents of the protected documents were not delivered in closed court. Such conduct was singularly inappropriate and had the self-evident potential to subvert any possible appeal which might be sought in respect of the judgment. On the other hand, the judgment has not been uploaded to the internet, so far as this Court can tell, and the transcript would not be generally available. Nevertheless this Court should not extend the scope of such publication as may have occurred by setting out those disclosures. 48In summary form, the factors which appear to have persuaded the primary judge to make the disclosure order were as follows: (a) the opinion of the Director that some documents may be relevant to the sentencing exercise; (b) the fact that it might be inferred from the production of material that Ms Brown was an informer and was known to be such by the offender; and (c) having read the produced material, he had formed the view that it was "material which can be and should be shown to the offender's legal representatives because it is possible that it may assist them in some way in presenting their arguments on sentence". 49The first factor was either irrelevant or of no weight; the second factor was by no means decisive and the third factor illustrated lack of attention to the appropriate legal test. 50In relation to the first point, the Director's opinion was both irrelevant and unhelpful. Indeed, the primary judge appears to have rejected it in part because he ignored the fact that it referred only to some of the documents viewed and not to the whole of the documents which the primary judge held should be released. Secondly, he ignored the Director's opinion that public interest immunity applied. Thirdly, he ignored the fact that the opinion only extended to the possibility of relevance, a matter which will be addressed further below. 51In relation to the second point, as already noted, to identify a person as an "informer" is to accord a label which may well have implications which are not intended and may or may not be supported by the true facts, if they were known. It certainly cannot, by itself, provide a basis for disclosure of communications, as opposed to removing a critical obstacle: cf Alister, 154 CLR at 469-470. 52The third point is, however, critical for present purposes and calls for analysis. Section 130 requires that the court undertake a balancing exercising involving two aspects of the public interest. On the one hand, there is the public interest in "admitting into evidence information or a document". The assumption underlying this element is that the document or information would otherwise be admissible. The importance of that consideration appears to have been obscured by the fact that the Courts were first invited to deal with the question of whether the respondent may have had a legitimate forensic purpose in seeking access to the documents, before dealing with the question of public interest immunity. Furthermore, it is not possible to carry out the balancing exercise by addressing the possibility that such material may be relevant to an issue at the sentencing hearing, without identifying the issue. That exercise was not undertaken, an omission which demonstrated error in the approach adopted. 53Importantly, it is an exercise which still cannot be undertaken. The forensic purpose relied upon by senior counsel for the respondent has been set out at [17] above. That explanation included three elements. The first was that the operation involving the undercover officer, which resulted in the respondent's arrest, "involved ... a well known technique of ramping up the amounts of the drug until such time as the amounts in total supplied by the offender exceeded the large commercial limit". The term "ramping up" has sinister connotations; what the facts as presently known to this Court indicate is that there were a number of supplies of cocaine over a period of some weeks and an arrest which followed when the total amount exceeded 1 kilogram. That set of circumstances was neutral as to whether the respondent had been willing, anxious or reluctant to supply further drugs at any particular point in time. 54The second element of the identified forensic purpose was described thus: "[t]he precise point that Mr Lipton makes is that he got out of his depth and out of his league when the amounts got bigger but Melanie Brown was encouraging him to continue to deal with the undercover officer ...". The language used may have been intended to be rhetorical; it may have reflected the respondent's current instructions to his counsel. However, at no stage had the respondent indicated any willingness or intention to give evidence along the lines of the statement. Submissions without a factual foundation would not raise a relevant issue at the sentencing hearing. This, indeed, was the reason why King DCJ originally set aside (relevantly for present purposes) paragraph 4 of the subpoena, a conclusion upheld by this Court in its 2010 decision. Nothing has changed since that time in this respect. The respondent is not bound to give evidence in accordance with the instructions he may have given to his counsel, and may not do so. There is no suggestion that anyone else could give such evidence on his behalf. Evidence that he was in a particular "league" would presumably involve admissions as to a prior course of dealing in drugs not yet the subject of any charges. One would not need to be unduly cynical to express doubt as to whether the respondent will ever give evidence to that effect. 55Thirdly, the fact that Ms Brown may have encouraged the respondent to trust the undercover officer could hardly provide a significant point in mitigation of sentence. It suggests that the respondent was not unwilling to supply drugs, but was wary about supplying drugs to people he did not trust and who might be undercover police officers. That aspect of counsel's statement should be disregarded. 56The fact that the primary judge accepted that material "showing contact between her and police officers" should be disclosed "because it is possible that it may assist [the respondent's legal representatives] in some way in presenting their arguments on sentence", suggests that no significant consideration was given to the use of the material in evidence or its precise relevance to any particular argument. How it could be used in argument if it were not tendered is unclear; the possibility of assistance "in some way" at the very least indicates that the weight to be given to disclosure must be low. 57On the other side of the scale, the primary judge was required to consider the public interest in preserving secrecy or confidentiality in relation to any information supplied to the police in confidence. He was also required to consider whether, even if the person in question had been identified as "an informer", the release of all communications between that person and the police might not have a chilling effect in respect of future co-operation between prospective informers and police. 58Having assumed that Ms Brown had been identified as an informer and "not a secret person" (judgment, p 4), the primary judge largely restricted his further consideration of the public interest against disclosure by referring to the need to protect "police methods", a factor as to which he was sceptical and to which he gave little weight. That consideration did not adequately address the two points noted above. Conclusions 59The relevant documentary material and confidential submissions with respect to it were supplied to this Court. The Attorney General expressly invited this Court to determine the question of immunity in the event that the Court found error on the part of the primary judge and set aside his orders. The purpose of that request appeared to be to preclude the need for any further debate on the issue in the District Court. In effect, the Attorney sought a finding that there was simply no material which would, in any possible circumstances, provide material assistance to the respondent with respect to mitigation of sentence. 60Given the period of time during which the respondent has been in custody awaiting sentence, the possible benefits from acceding to such a submission are attractive. However, there are difficulties inherent in the exercise. 61The principal difficulty may be illustrated by considering the circumstances of the undercover officer. If there had been any enticement of a kind sufficient to warrant a degree of mitigation of sentence, it might be expected that that would have come from the undercover officer. With respect to the relationship between the respondent and the undercover officer, their conversations were recorded. In his case, there is no doubt that any enticement was to be attributed to the law enforcement authorities. By comparison, the situation with respect to Ms Brown is quite different. Such records as there may be of communication between her and the police would not be records of communications between her and the respondent. A statement by a police officer as to what Ms Brown claimed to have said to the respondent or the respondent had said to her would give rise to different questions as to admissibility, relevance, reliability and weight. 62As noted above, the "forensic purpose" identified by counsel for the respondent is both fragile (in the sense that it may well be abandoned) and incomplete, in the sense that it is difficult to see how any statement made by Ms Brown to the respondent could assist in mitigation of his sentence unless he gave evidence that it had influenced him in some manner. If he did give such evidence of a particular statement at a particular time, that might affect the consideration which the Court would need to give to any documents which might be produced by the Commissioner and which might be relevant to that alleged enticement. Without knowing the detail of such reliance, there is a real risk that the Court might undertake an inspection of any documents produced and miss an arguable point. On the other hand, it might undertake the task in the manner in which the primary judge appears to have done and treat the mere possibility that the respondent could make some use of discovered material as sufficient to warrant its production and inspection. That would be to compound the error already identified. There is yet a further difficulty; if disclosure were declined in relation to some or all of the inspected material, the reasons would not be disclosed and the scope of the consideration might not be revealed in a way which would assist the respondent to know if a fresh application would be warranted. 63Accordingly, it is necessary to decline the invitation of the Attorney that this Court carry out that exercise. In truth, this Court is in no better a position than it was on the occasion of the 2010 appeal, when it upheld the setting aside of the subpoena. 64There is one further matter as to which the Court can provide some limited further assistance. It concerns the supposed disclosure that Ms Brown "is an informer". 65There are occasions upon which that disclosure may be a necessary step in undertaking the balancing exercise required both under the general law and under s 130. Thus, in Alister, the High Court was fully cognisant of the fact that if it were to order that the Commonwealth produce documents recording communications concerning the applicants from Mr Seary to ASIO, it would in effect reveal the fact, or confirm the suspicion, that Mr Seary was an ASIO informer. In circumstances where it was known that Mr Seary was an agent and an informer and had been a most important prosecution witness at the murder trial of the applicants, Gibbs CJ was "not persuaded that the public interest would be harmed by discovery of the fact (if it be a fact) that Seary had made reports to ASIO concerning the applicants": at 415. Having reached that conclusion, he further held that it would be proper to require disclosure of the documents to the Court so that it could form an opinion as to whether they should be produced to the applicants: at 416. 66Had a different view been taken it would no doubt have been possible, and would have been possible in the present case, for the primary judge to have conducted a hearing in the presence of counsel for both parties at which the Commissioner could have been directed, pursuant to s 133, to disclose any documents which fell within the terms of a valid subpoena, for the inspection of the Court, but in circumstances where counsel would not be entitled to advise the respondent as to whether any documents had been produced. The fact that such information would not be disclosed would maintain confidentiality as to whether the person from whom communications were suspected of emanating was or was not a police informer. 67This case is not in the same category as Alister's case, in the sense that there is no question about the legitimacy of a conviction of the heinous crime of murder, the respondent having pleaded guilty. Nor is it a case where the documents relate to the credibility of a central prosecution witness; there is no suggestion that Ms Brown will be called at the sentencing hearing. Nor was it true when the subpoena issued to say of Ms Brown, as could be said of Mr Seary, that it was well known that he was an undercover agent, though not for whom he worked. On the other hand, it must be acknowledged that, due to the course taken by the police and by the courts after the first subpoena was set aside, the respondent is entitled to assume that Ms Brown had communications with police officers in relation to the offences for which he has pleaded guilty. 68That fact, however, does not warrant disclosure of the content of those communications unless the respondent is able to demonstrate that they may be relevant to a real and not hypothetical issue with respect to his sentencing. It follows that, if such an issue is squarely raised, the sentencing court may be required to examine the documents to determine whether any is genuinely relevant and admissible, taking into account the matters of state, and particularly those identified in s 130(4)(c), (e) and (f). Thus, if the respondent gives evidence of a specific enticement which affected his conduct and it is not squarely admitted by the Director that the enticement emanated from the police, the Court will need to consider any relevant documents to see if they supply admissible evidence of that connection. 69For present purposes, it is sufficient that the Court make the following orders: (1) Set aside any order made by Finnane DCJ in the District Court at the time of or consequent upon the judgment delivered on 24 February 2012 requiring the Commissioner of Police to produce and permit the respondent to have access to documents pertaining to the relationship between police and Ms Melanie Brown. (2) Direct that if such documents are in the custody of the Court, they be returned to the Commissioner of Police. (3) Direct that any further application for production of such documents be made by way of a fresh subpoena issued for that purpose. 70HOEBEN JA: I agree with Basten JA and the orders which he proposes. 71McCALLUM J: I agree with Basten JA. ********** 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. Decision last updated: 24 July 2012