Citation: Regina v James Saleam [1999] NSWCCA 86
Court: NSW Court of Criminal Appeal
Date: 27 April 1999
Judge(s): Spigelman CJ, Studdert J, Simpson J (unanimous, reasons by Simpson J)
Background
The applicant had been convicted in 1994 in the District Court of conspiring to maliciously damage by fire a motor vehicle belonging to a named victim. He was represented by counsel at trial, entered no objection to the prosecution evidence, and made an unsworn statement in which he openly admitted to agreeing to participate in the burning of the vehicle at his former wife's request. On that basis, Simpson J noted, his conviction was effectively inevitable and he expressly acknowledged as much.
The applicant sought a permanent stay of proceedings before trial on the basis that a police detective had instigated the offence by procuring his former wife to persuade him to commit it. That application was refused in 1994 because there was no evidence to support it. He then filed a notice of appeal against conviction in late 1997, also seeking leave to appeal the refusal of the stay.
In these interlocutory proceedings, the applicant sought orders requiring the Director of Public Prosecutions and the Commissioner of Police to produce documents, primarily records formerly held by the now-disbanded NSW Police Special Branch. His aim was to find material that would support the allegation of police instigation and fill the evidentiary void that had doomed his original stay application.
Legal Issues
- Whether the applicant had identified a legitimate forensic purpose for the production of documents from the DPP and the Commissioner of Police.
- Whether it was "on the cards" that the documents sought would materially assist the applicant's case, either on an appeal against conviction or on an application for leave to appeal the refusal of a permanent stay.
- Whether, even if police misconduct were established, the conviction should be set aside on public policy grounds under the principles in R v Ridgeway (1995) 184 CLR 19.
Decision
The application concerning the DPP was resolved quickly. The DPP consented in principle to an order but confirmed it held no documents matching the descriptions provided. The court accepted that assertion and found no purpose would be served in making the order.
On the application against the Commissioner of Police, Simpson J applied the two-stage test drawn from earlier proceedings involving the same applicant (R v Saleam (1989) 15 NSWLR 14): the applicant must identify a legitimate forensic purpose and must establish that it is "on the cards" that the documents will materially assist his case. The court accepted, for the sake of argument, that a legitimate forensic purpose existed, given the applicant's articulated theory of police instigation. The critical question was whether the "on the cards" threshold was met.
Simpson J surveyed the material the applicant placed before the court: an affidavit from his former wife, extracts from a Royal Commission transcript, and reports from the Police Integrity Commission and a Privacy Committee. None of this material contained anything from which it could even be inferred, let alone established, that Detective Ireland had instigated the relevant offence. The Royal Commission extracts, which represented the high point of the applicant's case, revealed some unrelated misconduct and financial impropriety by the detective, but nothing connected to the events underlying the charge. The "on the cards" threshold was not satisfied.
The court also noted a fundamental difficulty that would have persisted even if relevant material had been found: the applicant had admitted in his own unsworn statement at trial that he entered the agreement constituting the conspiracy. Given that the offence was complete upon the agreement, any later effort to withdraw was legally irrelevant. The prospect of a successful appeal on fresh evidence grounds, or of the public policy exclusion in Ridgeway applying to quash the conviction, was accordingly remote.
Orders Made
- Both applications dismissed.
Key Takeaways
- The two-stage test for pre-trial or interlocutory document production requires the applicant to identify a legitimate forensic purpose and to establish that it is "on the cards" that the documents will materially assist the case: R v Saleam (1989) 15 NSWLR 14 confirmed and applied.
- Mere suspicion or theoretical possibility that documents may contain helpful material is insufficient to satisfy the "on the cards" test from Alister v R (1984) 154 CLR 404; the applicant must point to some material from which the inference of likely assistance can reasonably be drawn.
- A conviction for conspiracy is complete at the time the agreement is made, meaning subsequent efforts by a party to withdraw from the plan do not negate the offence.
- Where an applicant has openly admitted at trial to the acts constituting the offence charged, the prospect of fresh evidence producing acquittal or a successful public policy exclusion under Ridgeway principles is substantially diminished.
- Ordering production of documents imposes real costs on public authorities; the Court of Criminal Appeal confirmed such an order will not be made unless a proper evidentiary basis for it has been established.
Legislation and Cases Referenced
Legislation
- Customs Act 1901
- Criminal Procedure Act 1986 (NSW), s 32
Cases
- Alister v R (1984) 154 CLR 404
- R v Gallagher (1986) 160 CLR 392
- R v Saleam (1989) 15 NSWLR 14
- R v Mickelberg (1989) 167 CLR 259
- R v Ali Tastan (1994) 75 A Crim R 498
- R v Ridgeway (1995) 184 CLR 19