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Court of Criminal Appeal 25 February 2026

R v Chamma

[2026] NSWCCA 12

Homicide

Citation: R v Chamma [2026] NSWCCA 12
Court: Court of Criminal Appeal (NSW)
Date: 25 February 2026
Judge(s): N Adams CJ at CL, Chen and Coleman JJ

Background

This appeal arose from a criminal proceeding in which the accused had been indicted (it appears, for a homicide offence, given the eventual plea to manslaughter). The accused had served a subpoena on the Commissioner of Police seeking production of documents. One paragraph of that subpoena concerned a person identified only as "Witness G." The Crown's case apparently involved calling Witness G as a witness. The Attorney-General and the Commissioner of Police challenged the trial judge's ruling refusing to excuse the Commissioner from producing documents in response to that particular paragraph of the subpoena.

The Attorney-General appealed as of right under s 5F(2) of the Criminal Appeal Act 1912 (NSW), while the Commissioner of Police sought leave to appeal under s 5F(3)(a) of the same Act. The appeal was heard urgently on 11 February 2026, given the jury was about to be empanelled and Witness G was expected to give evidence shortly afterwards.

However, before the Court of Criminal Appeal could hand down its decision, the accused offered a plea of guilty to manslaughter, which the Crown accepted in full satisfaction of the indictment. The accused confirmed he no longer required compliance with the impugned paragraph of the subpoena. The accused consented to dismissal of the appeal, but the Attorney-General and the Commissioner opposed dismissal, arguing that the appeal raised an issue of general importance — specifically, the interaction between the so-called "informer rule" (which protects the identity of police informants) and the scope of subpoenas — and that the Court should proceed to deliver a substantive judgment.

  • Whether the Court should determine the appeal notwithstanding that the underlying controversy had been fully resolved — specifically, whether the appeal raised issues of sufficient general importance to warrant the Court providing reasons and making substantive orders.

  • Whether the general principle against issuing advisory opinions on hypothetical questions applies in criminal proceedings, or whether it is confined to civil matters.

  • Whether the Commissioner of Police remained obliged to comply with the subpoena, such that the Court was required to determine the appeal to relieve the Commissioner of that obligation.

Decision

The Court unanimously dismissed the Attorney-General's appeal and refused the Commissioner leave to appeal, declining to deliver a substantive judgment on the merits.

The Court held that the questions raised by the appeal had become entirely hypothetical. Not only had the specific dispute about the subpoena resolved, but the broader criminal proceeding had concluded by way of a guilty plea. There was therefore no "concrete situation" in which the Court's orders could finally resolve a dispute or quell a controversy — the touchstone articulated by the High Court in Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334. The general principle against advisory opinions was squarely engaged.

Significantly, the Court confirmed that this principle applies with equal force in criminal proceedings as in civil proceedings. The Court observed that the universality of the principle's subject matter — which concerns the proper constitutional role of the judiciary in resolving real disputes — means there is no reason to confine it to civil matters.

While acknowledging that the Court retains a residual discretion to determine a moot appeal, the Court found the Attorney-General had not demonstrated a case for exercising that discretion. The substantive argument concerned the "informer rule" — the principle protecting the confidential basis on which police deal with informants and shielding their identities from disclosure. The Attorney-General contended the subpoena, by its form, risked revealing informant status regardless of whether the relevant person was or was not an informant. However, the Court found that the mere possibility of a similar issue arising in the future was insufficient reason to proceed. The Attorney-General had accepted during argument that subpoenas in this form were "quite rare," and no evidence was before the Court about whether similarly worded subpoenas had been served on other occasions. The Court noted that the only comparable authority the parties could identify was a 2006 District Court of South Australia decision. These matters meant the Court could not meaningfully assess whether public policy considerations favoured a substantive determination. On the question of the Commissioner's ongoing obligation to comply with the subpoena, the Court held there was no basis to suggest the Commissioner remained required to respond in the changed circumstances. If the Commissioner held a different view, the appropriate course was to relist the matter before the trial judge.

Orders Made

  • The Attorney-General's appeal was dismissed.
  • The Commissioner of Police was refused leave to appeal.

Key Takeaways

  • The Court of Criminal Appeal confirmed, apparently for the first time in this jurisdiction, that the general principle against courts determining hypothetical questions is not confined to civil litigation but applies with equal force to criminal proceedings.

  • A mere possibility that a similar issue may arise in future proceedings was held to be insufficient to justify exercising the discretion to determine a moot appeal, with the Court requiring something more than the prospect that the legal issue could recur.

  • The Attorney-General's own concession that the relevant form of subpoena was "quite rare" significantly undermined the case for exercising the discretion to hear the appeal, particularly given the absence of evidence about how frequently the issue arose in practice.

  • Where a legal issue can be resolved in future litigation involving a live controversy, the Court indicated it will generally decline to address it in the abstract, even where the issue touches on matters of "high importance" such as the informer rule.

  • In dismissing the appeal, the Court directed that the Commissioner could relist the subpoena matter before the trial judge if residual procedural concerns remained, rather than determining the moot point itself.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), ss 5F(2), 5F(3)(a)
- Evidence Act 1995 (NSW), s 130

Cases:
- Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667
- Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; [1999] HCA 9
- Bonan v Hadgkiss (2007) 160 FCR 29; [2007] FCAFC 113
- Civil Aviation Safety Authority v Administrative Appeals Tribunal (2001) 33 AAR 439; [2001] FCA 1319
- Director of Public Prosecutions (DPP) v Smith (1996) 86 A Crim R 308
- Harrington v Rich (2008) 166 FCR 440; [2008] FCAFC 61