Citation: Attorney General (NSW) v Lipton [2012] NSWCCA 156
Court: Court of Criminal Appeal
Date: 20 July 2012
Judge(s): Basten JA (principal judgment); Hoeben JA and McCallum J (agreeing)
Background
The respondent had pleaded guilty to two offences involving the supply of large commercial quantities of prohibited drugs (cocaine and MDMA) but had not yet been sentenced. He suspected that a former partner, Ms Brown, had acted as a police informer and may have encouraged him to increase the quantity of drugs in each successive transaction. He sought this material as potential mitigation at sentencing, on the basis that her conduct could have constituted a form of entrapment or enticement attributable to police.
The respondent issued a subpoena to the Commissioner of Police seeking documents recording communications between police and Ms Brown. The Commissioner produced documents to the District Court but claimed public interest immunity (PII) to prevent their disclosure to the respondent. An earlier subpoena on the same issue had already been set aside, and the Court of Criminal Appeal had previously dismissed a leave application because the respondent had not provided any evidence that Ms Brown had actually encouraged him to commit the offences.
On 24 February 2012, Finnane DCJ indicated he would order disclosure of the documents to the respondent. The Attorney General appealed that interlocutory order to the Court of Criminal Appeal under s 5F of the Criminal Appeal Act 1912 (NSW).
Legal Issues
- Whether a claim of public interest immunity in relation to a police informer is capable of being overcome for the purposes of a sentencing hearing (as distinct from a trial on guilt).
- Whether, if PII can be overcome at sentencing, the respondent had met the threshold required to justify disclosure of the documents.
- Whether the primary judge erred in the balancing exercise under s 130 of the Evidence Act 1995 (NSW).
Decision
On the first issue, the Court accepted that PII relating to police informers is not absolutely immune from disclosure merely because the proceeding is a sentencing hearing rather than a trial. The traditional common law principle, most associated with the English decision in Marks v Beyfus, held that the only recognised exception to non-disclosure of informer identity was where an accused needed the material to properly defend against conviction. The Court noted, however, that the balancing exercise now required by s 130 of the Evidence Act is not confined by unexpressed common law rules, and it is at least doubtful that the old rule was ever as absolute as sometimes stated.
On the second issue, the Court found the primary judge erred in the balancing exercise. Finnane DCJ had not properly weighed the factors listed in s 130(4) of the Evidence Act, which require courts to consider the nature of the proceedings, the likely significance of the evidence, and the nature of the information sought to be protected.
The Court then considered whether it could itself perform the balancing exercise. It concluded it was not well placed to do so. The critical problem was that the respondent had still not placed before any court any evidence from himself that Ms Brown had made a specific statement or taken any step that influenced his conduct. Without that foundation, any relevance of the documents to sentencing remained hypothetical rather than real. The Court declined to disclose the documents, but left open the possibility that a fresh application supported by appropriate evidence could succeed.
Orders Made
- The order made by Finnane DCJ on 24 February 2012, requiring the Commissioner of Police to produce and permit the respondent access to documents pertaining to his relationship with Ms Brown, was set aside.
- Any such documents held in the custody of the Court were to be returned to the Commissioner of Police.
- Any further application for production of those documents was to proceed by way of a fresh subpoena.
Key Takeaways
- Under s 130 of the Evidence Act 1995 (NSW), the balancing exercise for public interest immunity claims is not constrained by unexpressed common law rules derived from cases such as Marks v Beyfus; the statutory test governs.
- A claim of PII protecting a police informer is not automatically defeated merely because the relevant proceeding is a sentencing hearing rather than a trial on guilt, but nor is it automatically immune from being overcome in that context.
- An offender seeking disclosure of protected documents to support a sentencing submission must demonstrate that the material is relevant to a real, not merely hypothetical, issue. Without evidence of specific conduct by the suspected informer that influenced the offender's behaviour, the threshold for disclosure is not met.
- The Court of Criminal Appeal confirmed that the procedural history of this matter was "fraught," noting that the Commissioner's earlier production of documents to the Court while simultaneously seeking to set aside the subpoena had implicitly conceded the very relationship the PII claim was designed to protect.
- Disclosure remained available in future proceedings if the respondent gave evidence of a specific enticement attributable to police conduct, leaving the door open to a properly supported fresh application.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F
- Evidence Act 1995 (NSW), ss 130, 131A
Cases:
- Marks v Beyfus (1890) 25 QBD 494
- Alister v The Queen [1984] HCA 85; 154 CLR 404
- D v National Society for the Prevention of Cruelty to Children [1978] AC 171
- Sankey v Whitlam [1978] HCA 43; 142 CLR 1
- State of New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60
- Derbas v R [2012] NSWCCA 14
- Lipton v R [2010] NSWCCA 175
- Attorney General (NSW) v Chidgey [2008] NSWCCA 65; 182 A Crim R 536
- Attorney General (NSW) v Stuart (1994) 34 NSWLR 667
- WO v Director of Public Prosecutions (NSW) [2009] NSWCCA 275
- Nagi v Director of Public Prosecutions (NSW) [2009] NSWCCA 197
- R v Steffan (1993) 30 NSWLR 633
- Cain v Glass (No 2) (1985) 3 NSWLR 230