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Court of Criminal Appeal 2 September 2015

Perish v R; Lawton v R

[2015] NSWCCA 237

Homicide
CRIMINAL LAW APPEAL ORDERS FOR PRODUCTION LEGITIMATE FORENSIC PURPOSE FRESH EVIDENCE CROWN’S DUTY OF DISCLOSURE

Citation: Perish v R; Lawton v R [2015] NSWCCA 237
Court: Court of Criminal Appeal, New South Wales
Date: 2 September 2015
Judge(s): Hoeben CJ at CL, Price J, Fagan J

Background

Anthony Perish and Matthew Lawton were convicted by jury in September 2011 of the murder of Terrence Falconer and conspiracy to murder, following a 36-day trial. They were sentenced to lengthy terms of imprisonment in April 2012 and remained in custody at the time of these proceedings. Their conviction appeals were listed for hearing in September 2015.

In advance of those appeals, both appellants caused the Registrar to issue orders for production addressed to NSW Police, seeking all documents relating to the payment of a reward for information in the investigation into Falconer's death. The Commissioner of Police successfully applied to have those orders set aside before RA Hulme J, sitting as a single judge of the Court of Criminal Appeal, in May 2015.

The appellants then filed Notices of Motion seeking to have RA Hulme J's decision set aside and to have the full Court determine whether the production orders should stand. The Commissioner acknowledged a reward had been paid but opposed production, disputing that a legitimate forensic purpose had been established and raising a public interest immunity claim over any responsive documents.

  • Whether the appellants had demonstrated a legitimate forensic purpose for the production orders, specifically whether it was "on the cards" that the documents would materially assist their appeal grounds.
  • Whether the documents might support grounds going to fresh evidence or a material breach of the Crown's duty of disclosure, in connection with the credit of a key Crown witness (referred to as Witness A).
  • Whether a public interest immunity claim by the Commissioner of Police should be upheld in respect of any documents answering the production orders.
  • Whether Price J, who had presided at the trial, was subject to a reasonable apprehension of bias that required him to recuse himself from the motions.

Decision

The Court dismissed both Notices of Motion, upholding the earlier decision to set aside the production orders. The central question on legitimate forensic purpose was whether it was "on the cards" that the documents would assist the appellants' case. The Court found the appellants had not established that real possibility. The reward was publicly announced on 25 January 2009, years after Witness A first provided information to police in late 2002 and signed his detailed statements in 2003 and 2007. There was no material before the Court capable of supporting an inference that Witness A held any expectation of reward at the time he gave his evidence at trial.

Because the public announcement of the reward predated the arrests of Lawton and Andrew Perish by only days, and because Witness A's engagement with police substantially preceded that announcement by years, the chronological sequence undermined the appellants' contention that reward-related documents might disclose a relevant expectation or promise capable of affecting Witness A's credit. The Court was not persuaded that production could realistically assist grounds premised on fresh evidence or breach of the Crown's disclosure obligations.

Given the Court's conclusion on legitimate forensic purpose, it was unnecessary to finally determine the public interest immunity claim. The Court noted the Commissioner did not resist inspection of any documents by the Court for the purpose of resolving the immunity question, but that question did not need to be reached.

On the recusal application, Price J, who had presided at the appellants' trial, provided reasons for rejecting the application. His Honour applied the two-step test drawn from the High Court authorities: first, identifying what might lead a judge to depart from deciding a matter on its merits, and second, articulating the logical connection between that matter and the feared deviation. The motion proceedings were entirely separate from the issues at trial, the verdicts had been returned by the jury as sole judges of fact, and the matters argued on the motions had no connection to any rulings made during the trial. No coherent basis was identified for a fair-minded lay observer to reasonably apprehend a lack of impartiality.

Orders Made

  • The Notice of Motion filed on behalf of Anthony Perish on 16 June 2015 is dismissed.
  • The Notice of Motion filed on behalf of Matthew Lawton on 25 June 2015 is dismissed.

Key Takeaways

  • To obtain an order for production of documents in connection with a criminal appeal, an appellant must demonstrate a legitimate forensic purpose by showing it is "on the cards" that the documents will materially assist the case, not merely that they might conceivably be relevant.
  • Chronology is a critical factor in assessing reward-related disclosure arguments: where the evidence of a key witness substantially predates any public announcement of a reward, that sequence makes it significantly harder to establish any relevant expectation or promise going to credit.
  • The Court of Criminal Appeal confirmed that a trial judge is not automatically disqualified from hearing interlocutory or procedural motions arising in the same appellants' appeal proceedings, provided the matters for determination are distinct from issues decided at trial.
  • In applying the apprehension of bias test, an applicant must both identify the matter said to give rise to partial decision-making and articulate a logical connection between that matter and a feared departure from impartial adjudication. A bare assertion that the proceedings are "part of the appeal process" does not satisfy that requirement.
  • Where a legitimate forensic purpose cannot be established, a public interest immunity claim over the same documents does not require separate determination.

Legislation and Cases Referenced

Cases:
- Alister v The Queen [1984] HCA 85; (1984) 154 CLR 404
- Attorney General for NSW v Chidgey [2008] NSWCCA 65
- Attorney General for NSW v Stuart (1994) 34 NSWLR 667
- Carroll v Attorney General for NSW (1993) 70 A Crim R 162
- Commissioner for Railways v Small (1938) 38 SR NSW 564
- Da Silva v R [2012] NSWCCA 129
- Grey v R [2001] HCA 65
- In the matter of Cheal Industries Pty Ltd, Fitzpatrick v Cheal [2012] NSWSC 812
- Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
- Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427
- Perish v R; Lawton v R [2015] NSWCCA 129 (the earlier single-judge decision)
- R v Perish [2012] NSWSC 355
- R v Saleam (1989) 16 NSWLR 14
- R v Saleam [1999] NSWCCA 86
- Sullivan v R [2003] NSWCCA 100
- Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337

Legislation: No specific legislation was identified in the provided judgment text.