Citation: Perish, Anthony v R; Lawton v R [2015] NSWCCA 129
Court: Court of Criminal Appeal
Date: 29 May 2015
Judge(s): R A Hulme J
Background
Anthony Perish and Matthew Lawton were convicted by a jury in September 2011 for their roles in the abduction and murder of Terrence Falconer in November 2001. Both had appeals against conviction pending before the Court of Criminal Appeal, listed for hearing in September 2015.
A 2012 newspaper article reported that a government reward of $200,000 had been paid to a protected source who assisted investigators with the Falconer murder. On the basis of that article, the respondents separately obtained Orders to Produce directed to the NSW Police Service, seeking documents related to the reward. They contended that a prosecution witness, referred to as Witness A, may have received the reward, which would have been relevant to that witness's credibility at trial.
The Commissioner of Police applied to have both Orders to Produce set aside, arguing there was no legitimate forensic purpose for the orders and, in the alternative, that the documents attracted public interest immunity.
Legal Issues
- Whether the respondents established a legitimate forensic purpose for the Orders to Produce directed to NSW Police.
- Whether, even if a legitimate forensic purpose existed, the respondents established that it was "on the cards" the documents would materially assist their case.
- Whether the documents were protected from production by public interest immunity under s 130(5) of the Evidence Act 1995 (NSW).
Decision
Legitimate Forensic Purpose
Hulme J set aside both Orders to Produce on the ground that the respondents failed to establish a legitimate forensic purpose (at [34]-[35]). The settled principle is that relevance alone is insufficient; a party seeking production must identify a specific forensic purpose and demonstrate it is "on the cards" that the documents will materially assist their case (at [21]-[23]).
The respondents' claims rested on a chain of unverified assumptions: that the newspaper article was accurate, that a reward was paid to a witness, that Witness A specifically received the reward, and that police had spoken to Witness A about the prospect of a reward before trial (at [33]). The court found these propositions to be speculation rather than established fact. It also noted that no witness had been cross-examined at trial about rewards, and the absence of any prosecution disclosure of the kind now alleged was itself a guide that there was nothing of that nature to disclose (at [27]-[28]).
The court characterised the Orders to Produce as a fishing expedition, seeking material in the hope of providing a foundation for a ground of appeal that could have been raised at trial even without such documents (at [35]).
Public Interest Immunity
Although public interest immunity was not the primary basis for the decision, Hulme J briefly addressed it for completeness (at [36]). After inspecting the documents attached to the confidential affidavits of the Deputy Commissioner, his Honour was satisfied there was a very high need for the material to remain confidential. Importantly, he found nothing in the material to suggest that withholding it would frustrate any attempt by the respondents to establish a miscarriage of justice (at [39]).
Orders Made
- The Orders to Produce issued to the NSW Police Service on 1 July 2014 and 4 February 2015 are set aside.
Key Takeaways
- A party seeking production of documents under an Order to Produce must establish a legitimate forensic purpose; the mere relevance of the documents to the proceedings is insufficient to satisfy that requirement (at [22]).
- Beyond establishing a legitimate forensic purpose, the party must also show it is "on the cards" that the documents will materially assist their case (at [23]).
- Where claims of legitimate forensic purpose rest on a chain of assumptions derived from an unverified media report, rather than established facts, the onus of demonstrating that purpose is not discharged (at [33]-[34]).
- An Order to Produce that amounts to a fishing expedition, seeking material to give foundation to a ground of appeal that could have been raised at trial without such material, constitutes an abuse of process (at [35]).
- In conducting the public interest immunity balancing exercise under s 130(5) of the Evidence Act 1995 (NSW), the court may inspect confidential documents itself to assess whether withholding them would frustrate a party's ability to establish a miscarriage of justice (at [39]).
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1987 (NSW) s137
- Director of Public Prosecutions Act 1986 (NSW) s15A
- Evidence Act 1995 (NSW) s130(5)
Cases
- Alister v The Queen [1984] HCA 85; 154 CLR 404
- Attorney-General for New South Wales v Dylan Chidgey [2008] NSWCCA 65; 182 A Crim R 536
- Attorney General for New South Wales v Stuart (1994) 34 NSWLR 667
- Carroll v Attorney-General for New South Wales (1993) 70 A Crim R 162
- Commissioner for Railways v Small (1938) 38 SR (NSW) 564
- Perish v R; Perish v R; Lawton v R [2014] NSWCCA 233
- R v Saleam (1989) 16 NSWLR 14
- Regina v Saleam [1999] NSWCCA 86