Citation: R v Richard LIPTON (No.2) [2010] NSWDC 295
Court: District Court of New South Wales
Date: 26 November 2010
Judge(s): Finnane QC DCJ
Background
The offender pleaded guilty to a serious drug supply offence following his arrest in May 2009. Before sentencing, a dispute arose concerning a woman named Melanie Brown, who had a relationship with the offender. The defence contended that Brown may have induced the offender to commit the offences, potentially while acting as a police agent. Whether an offender was led into criminal conduct by a police agent is a matter that can bear significantly on sentencing.
Earlier proceedings before Judge King, and subsequently the Court of Criminal Appeal, had addressed subpoenas requiring police to produce documents about Brown. Both courts declined to compel production, finding no legitimate forensic purpose had been established because the offender had not provided sufficient evidence to substantiate the claim. The present application was a distinct one: not a subpoena, but a notice of motion requiring the Director of Public Prosecutions (DPP) to obtain those documents from police and form its own independent view on whether disclosure was required.
The DPP's solicitor-employee had enquired of the officer in charge, been told there was nothing to disclose, and proceeded no further. The offender's counsel argued that the DPP could not simply accept the police officer's response and had an independent obligation to seek and review the material personally.
Legal Issues
- Whether the DPP had an independent duty to obtain documents held by NSW Police concerning the relationship between police and Melanie Brown, rather than relying on the police officer's assurance that there was nothing to disclose.
- Whether the DPP could properly delegate its disclosure obligations to the investigating police.
- Whether a stay of proceedings was an appropriate remedy where the DPP declined to seek the relevant material.
Decision
Finnane QC DCJ held that the DPP holds a continuing and personal obligation to make disclosure decisions and cannot discharge that obligation by simply asking the officer in charge whether anything exists. The court drew the inference that documents concerning Brown clearly did exist, and that the police regarded them as non-producible based on the earlier judicial decisions. The DPP's solicitor had treated those decisions as resolving the disclosure question entirely, but the court found that was incorrect: those decisions addressed subpoenas, not the DPP's own independent disclosure duty.
The court was critical of what it described as a longstanding practice of allowing police to determine disclosure on sensitive material. In the court's view, the proper approach requires the DPP to obtain the documents itself, examine them, and then form its own opinion. If a police officer has concerns about production, those concerns should be raised with the DPP directly, and any legitimate dispute about public interest immunity should be litigated by the DPP, not by police acting independently.
The court acknowledged the application was unusual, arising in a guilty plea sentencing context rather than a trial. Nevertheless, the potential relevance of the material to sentencing was real, and the only mechanism available to the court to enforce the DPP's obligation was a stay of proceedings.
Orders Made
- A stay of proceedings was granted, to continue until:
- The DPP had sought and obtained from the officer in charge all documents pertaining to the relationship between police and Melanie Brown;
- The DPP had formed an opinion on whether those documents were relevant to any matter of sentence; and
- The DPP had communicated that opinion to the offender's legal adviser.
- The matter was stood over seven days to Friday 3 December 2010.
(Note: a Crown appeal was pending as at the date of publication of this judgment.)
Key Takeaways
- The District Court held that the DPP's disclosure obligation under its own Guidelines is an independent, continuing duty that cannot be satisfied by merely asking a police officer whether material exists.
- Delegating the disclosure decision to investigating police is, in the court's view, wrong in principle. The DPP must personally obtain, examine, and form an opinion about potentially relevant material before deciding what to disclose.
- Where police hold sensitive material and have concerns about its disclosure, the correct procedure is for police to raise those concerns with the DPP, who then makes the disclosure decision. Any resulting public interest immunity dispute is for the DPP to litigate, not for police to resolve unilaterally.
- A stay of proceedings is available as a remedy where the DPP declines to fulfil its disclosure obligations, even in the sentencing phase following a guilty plea.
- Earlier court decisions declining to compel production by subpoena do not extinguish the DPP's separate and ongoing obligation to seek, review, and assess the relevance of material in police hands.
Legislation and Cases Referenced
Legislation
- Director of Public Prosecutions Act 1986 (NSW), Schedule 1
- Office of the Director of Public Prosecutions (NSW) Guidelines, Guideline 18 (Disclosure) (as amended 1 June 2007)
Cases
- 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