Citation: Perish, Anthony v R; Lawton v R [2015] NSWCCA 129
Court: Court of Criminal Appeal, NSW
Date: 29 May 2015
Judge(s): R A Hulme J
Background
Two appellants, convicted of the murder and conspiracy to murder of a man in 2001, had pending appeals against their convictions. A central ground of appeal for both was that the prosecution failed to disclose information about whether a key prosecution witness was eligible for, and intended to claim, a government reward following conviction.
A government reward for information leading to the arrest, charging and conviction of those responsible for the murder had been publicly announced in 2008 and re-announced in 2009. A newspaper article published in December 2012 referred to a $200,000 reward allegedly paid to a protected source who had assisted investigators in connection with the same murder. The appellants sought to obtain police documents relating to reward payments through Orders to Produce directed to the NSW Police Service.
The Commissioner of Police applied to have those Orders to Produce set aside, arguing there was no legitimate forensic purpose for the production. Alternatively, the Commissioner claimed public interest immunity over the documents.
Legal Issues
- Whether the appellants had established a legitimate forensic purpose for the Orders to Produce directed to NSW Police, sufficient to resist an application to set them aside as an abuse of process
- Whether, even if a legitimate forensic purpose existed, the appellants had established it was "on the cards" that the documents would materially assist their case
- Whether, in the alternative, the documents attracted public interest immunity under s 130(5) of the Evidence Act 1995 (NSW), and how the balancing exercise under that provision should be conducted
Decision
Hulme J set out the relevant legal framework: the party seeking production of documents must identify a legitimate forensic purpose, and mere relevance is not sufficient. Beyond establishing a legitimate forensic purpose, the party must also show it is "on the cards" that the documents will materially assist their case.
The appellants argued that the newspaper article supported an inference that the protected source referred to was "Witness A," a prosecution witness at their trial. However, the court found this inference rested on speculation rather than any established factual foundation. Affidavit evidence from senior Crown counsel and the appellant Lawton's trial counsel confirmed there had been nothing in the material available at trial to indicate that Witness A had any knowledge of, or intention to claim, a reward. The trial transcript also showed that the possibility of a reward having been offered was a matter already raised during the trial itself.
The court concluded that the Orders to Produce amounted to a fishing expedition. The appellants sought documents in the hope of finding something to support a ground of appeal that could have been raised at trial even without those documents. In those circumstances, the Orders to Produce constituted an abuse of process and were set aside.
On the public interest immunity question, Hulme J briefly noted that the matter did not reach the balancing exercise stage, given the absence of any legitimate forensic purpose. However, having inspected the confidential documents, the court found there was a very high need for the material to remain confidential, and nothing in the documents indicated that withholding them would frustrate any legitimate attempt by the appellants to establish a miscarriage of justice.
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 an Order to Produce must do more than show relevance: they must identify a legitimate forensic purpose and establish that it is "on the cards" the documents will materially assist their case.
- Where claims of legitimate forensic purpose rest on assumptions and speculation rather than established facts, the court will not permit production, and the Order to Produce may be set aside as an abuse of process.
- A media article referring to a reward payment, without more, did not provide a sufficient factual foundation to support an inference that a specific prosecution witness had claimed or intended to claim that reward.
- Under s 130(5) of the Evidence Act 1995 (NSW), the public interest immunity balancing exercise requires consideration of the importance of the documents and the seriousness of the offences for which the applicants were convicted, but the exercise does not arise at all where no legitimate forensic purpose has first been established.
- In dismissing the production applications, the court reinforced that an appeal ground that could have been raised at trial is not, without more, a basis for compelling production of sensitive police documents after conviction.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), s 130(5)
- Director of Public Prosecutions Act 1986 (NSW), s 15A
- Criminal Procedure Act 1987 (NSW), s 137
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