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Court of Criminal Appeal 9 August 2010

Lipton v R

[2010] NSWCCA 175

DrugsPublic order & justice offences
CRIMINAL LAW

Citation: Lipton v R [2010] NSWCCA 175
Court: New South Wales Court of Criminal Appeal
Date: 9 August 2010
Judge(s): McClellan CJ at CL; Hislop J; Barr AJ

Background

The applicant had pleaded guilty in the District Court to two charges of supplying large commercial quantities of prohibited drugs under the Drug Misuse and Trafficking Act 1985, following a series of transactions with an undercover police officer. He was awaiting sentence at the time of this application. During the relevant period, the applicant had been in a personal relationship with a woman referred to here as Ms Brown, with whom he claimed to have had extensive discussions about the drug dealings. He subsequently formed the belief that she had been collaborating with police throughout.

In his sentencing proceedings, the applicant issued a subpoena directed to the Commissioner of Police, seeking access to police records concerning Ms Brown's dealings with police. Two paragraphs of the subpoena were challenged: one seeking all statements relating to her involvement in the investigation, and another seeking all written or electronic records of communications between police and Ms Brown. The Commissioner successfully objected in the District Court on the basis that no legitimate forensic purpose had been established.

The applicant sought leave to appeal that decision to the Court of Criminal Appeal, arguing the primary judge had wrongly concluded that the subpoena amounted to a fishing expedition.

  • Whether the District Court erred in finding the applicant had not established a legitimate forensic purpose for the challenged paragraphs of the subpoena
  • Whether the applicant had demonstrated that it was "on the cards" that the documents sought would materially assist his case at sentencing
  • Whether the existing evidence raised more than mere suspicion or speculation about Ms Brown's role

Decision

The Court of Criminal Appeal unanimously dismissed the application. The court applied the two-stage test established in the case law: the party issuing a subpoena must first identify a legitimate forensic purpose, and must then establish that it is "on the cards" that the documents sought will materially assist the case. Both elements must be met before production and access can be ordered.

The court accepted that the circumstances surrounding Ms Brown were attended with "significant suspicion." Evidence showed she had been present at one meeting between the applicant and the undercover officer, had asked whether the officer had received "samples," and was never arrested or charged despite her apparent involvement. The applicant also pointed to the fact that a substantial volume of documents had been produced to the court in answer to the challenged paragraphs.

However, the court agreed with the respondent's position that the applicant's case rose no higher than a suggestion that Ms Brown may have facilitated the detection and prosecution of the applicant. There was no evidence that she had coerced, pressured, or enticed him to commit the offences. The distinction is significant in the sentencing context: police involvement becomes relevant to mitigation where it induced offending that would not otherwise have occurred, not merely where it assisted in gathering evidence of offending already underway.

McClellan CJ at CL noted that the outcome might not be final. If the applicant could bring forward evidence that Ms Brown had actively induced his offending, it may become possible to satisfy the "on the cards" threshold, potentially supporting a fresh subpoena application accompanied by adequate evidentiary material.

Orders Made

  • Application dismissed
  • Applicant ordered to pay the respondent's costs

Key Takeaways

  • To resist a challenge to a subpoena seeking production and access, the issuing party must satisfy a two-stage test: establishing a legitimate forensic purpose, and showing it is "on the cards" that the documents will materially assist the case.
  • Suspicion, even significant suspicion, about a third party's collaboration with police does not by itself satisfy the "on the cards" threshold if no evidence of inducement or coercion of the offending is placed before the court.
  • The Court of Criminal Appeal confirmed that police or informant involvement becomes particularly relevant at sentencing only where it can be shown the accused was encouraged to commit offences they would not otherwise have committed, not merely where police facilitated the gathering of evidence.
  • In dismissing the application, the court left open the possibility of a fresh subpoena if the applicant could first produce evidence of Ms Brown's conduct having had a relevant inducing effect, noting the evidentiary foundation must be laid before access will be ordered.
  • The court also flagged that the scope of the challenged paragraphs was extremely broad, potentially capturing documents entirely unrelated to the applicant, and indicated this drafting issue would need to be addressed in any future subpoena.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)

Cases:
- Attorney-General (NSW) v Chidgey [2008] NSWCCA 65; (2008) 182 A Crim R 536
- 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