Attorney General for New South Wales v Dylan CHIDGEY

… (b) in consequence of an impropriety or of a contravention of an Australian law, is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained." 8 In aid of his case that there was a legitimate forensic purpose, the respondent said that it was "on the cards": see Alister v R [1983] HCA 45; (1984) 154 CLR 404, that the documents referred to in para 3 of the subpoena would support an argument that the Controlled Operation Authorities issued in this case and pursuant to which the controlled operations were carried out, "were themselves applied for or granted pursuant to some impropriety". If that was established, an application under s 138 of the Evidence Act for the exclusion of the evidence of the undercover police officers would be made at trial. 9 There was no challenge to the validity of the Controlled Operation Authorities. Rather, the argument advanced by the respondent before the Magistrate was, as I have indicated, that there was some impropriety or contravention of a law in the issuing of the Authorities and that in consequence of that impropriety or contravention, the evidence was obtained which resulted in the charges being laid against the respondent. 10 The 'impropriety' was more specifically identified by senior counsel for the respondent during the course of appeal. He explained that the respondent's defence to the charge under s 25A was that the repetitive conduct in which the respondent had engaged and upon which that offence was based was "an artefact of the design of the controlled operation". It was alleged that the repetition of supply was deliberately sought by the police in order to create, or "ramp up", the charges from isolated incidents to a course of dealing in contravention of s 25A. In other words, it was asserted that the s 25A charge had only come about by the undercover police operatives importuning the respondent to supply the drug on a number of occasions. It was said that the police could only have engaged in that conduct by specifically making an application to do so. Of necessity, the conduct in which they proposed to engage had to be "mapped out" in the plan of the proposed operation, required to be provided in support of an application for a Controlled Operations Authority under s 5(2A) the Law Enforcement (Controlled Operations) Act. 11 It was submitted that to have a deliberate ploy to induce the respondent to engage in repetitive conduct in which he would not otherwise engage (or at least in respect of which the police may not be able to prove repetitive conduct for the purposes of s 25A) was an abuse of power contrary to the purpose for which the powers under the Law Enforcement (Controlled Operations) Act have been conferred and was a sufficient impropriety to ground an objection to the admissibility of the evidence of the police officers under s 138. 12 The Magistrate rejected that there was a legitimate forensic purpose in the terms identified by the respondent. However, he determined that there was another legitimate forensic purpose which he identified in the following terms: "It is appropriate that the defence be allowed access to the documents [required under s 5(2A) of the Law Enforcement (Controlled Operations) Act ] so that they can check that there has been compliance with form in order for the Chief Executive Officer to be … satisfied that [a controlled operations authority should be granted]. (Emphasis added)

… there is a legitimate forensic purpose for the supply of the material [referred to in s 5(2A) of the Law Enforcement (Controlled Operations) Act ] to the defence and that being the case it is on the cards that there could be mounted, if there is non-compliance with [s 5(2A)] at an appropriate time an argument under s 138 of the [Evidence] Act." 13 The Magistrate therefore refused the Commissioner of Police's application to strike out para 3 of the schedule to the subpoena. 14 The Attorney General has appealed as of right from that decision pursuant to s 5F(2) of the Criminal Appeal Act 1912. 15 Both parties agree that for an appeal to this Court under s 5F to succeed, the appellant must establish error of the type identified in House v The King (1936) 55 CLR 499: see R v Taylor [2007] NSWCCA 104; 169 A Crim R 543; Jovanovski v R [2008] NSWCCA 9 at [20].

Issues on the appeal 16 In the first instance, the respondent challenges the competency of the appeal brought by the Attorney General as of right under s 5F(2). The respondent contends that the right of appeal conferred by s 5F(2) is not an unqualified right of appeal, but may only be availed of when the Attorney General has some relevant interest in the proceedings. In this case, the Attorney General was neither a party to the proceedings in the Court below, nor the recipient of the subpoena, nor the moving party in seeking to set it aside. No question of public interest immunity was involved. It was submitted, therefore, that the Attorney General has no right of appeal in this case under s 5F(2). 17 Insofar as the appeal proper is concerned, the Attorney General makes an overarching complaint that para 3 of the schedule to the subpoena was too wide, as it would require the production of documents including the report to the Chief Executive Officer under s 15 and the report to the Ombudsman under s 21 of the Law Enforcement (Controlled Operations) Act. However, his essential challenge to para 3 was that the respondent had failed to establish that there was a legitimate forensic purpose of the type which permits access to the documents.

Appeal under s 5F of the Criminal Appeal Act 18 Section 5F provides for an appeal against an interlocutory judgment or order in, relevantly, the following terms: " 5F Appeal against interlocutory judgment or order

(1) This section applies to: (a) proceedings (including committal proceedings) for the prosecution of offenders on indictment in the Supreme Court or in the District Court, and

(2) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in proceedings to which this section applies.

(3) Any other party to proceedings to which this section applies may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in the proceedings: (a) if the Court of Criminal Appeal gives leave to appeal, or (b) if the judge or magistrate of the court of trial certifies that the judgment or order is a proper one for determination on appeal.

(3A) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any decision or ruling on the admissibility of evidence, but only if the decision or ruling eliminates or substantially weakens the prosecution's case.

(4) An appeal under this section shall, unless the Court of Criminal Appeal gives leave to adduce fresh, additional or substituted evidence, be determined on the evidence (if any) given in the proceedings to which the appeal relates.

(5) The Court of Criminal Appeal: (a) may affirm or vacate the judgment, order, decision or ruling appealed against, and (b) if it vacates the judgment, order, decision or ruling, may give or make some other judgment, order, decision or ruling instead of the judgment, order, decision or ruling appealed against …" 19 Section 5F of the Criminal Appeal Act was inserted by the Criminal Appeal (Amendment) Act 1987 and commenced on 18 December 1987. 20 The conferring of a statutory right of appeal upon the Attorney General is not new. Such a right was first conferred in 1924 by the insertion of s 5C to the Criminal Appeal Act 1912 by the Crimes (Amendment) Act 1924, s 33. The section in its earliest form read: "5C Where the Supreme Court or a Court of Quarter Sessions has quashed any information or indictment or any count thereof the Attorney-General may appeal to the Court of Criminal Appeal against the order made, and such court may thereupon determine the appeal and if the appeal is sustained may make such order for the prosecution of the trial as may be necessary." 21 Section 5C has undergone various amendments, but in each amendment, the Attorney General's right of appeal has been maintained. In the amendments made by the Criminal Appeal (Amendment) Act 1986 Sch 1(3), (commencing on 13 July 1987) (the 1986 amendment), a right of appeal was also conferred upon the Director of Public Prosecutions (the DPP). This aspect of the amendment historically reflects the creation of the office of the DPP by the Director of Public Prosecutions Act 1986. The 1986 amendment Sch 1(2) also extended the right of appeal to an appeal from the stay of an information or indictment (commencing on 1 February 1987). The right of appeal from a stay was removed from s 5C with the introduction of s 5F, which conferred the broader right of appeal against interlocutory judgments or orders: see the Criminal Appeal (Amendment) Act 1987, Sch 1(1) and 1(2) respectively (the 1987 amendment). An appeal from a stay of an information or indictment, being an interlocutory order, would now fall within s 5F. Section 5C has been further amended, but not so as to affect the right of appeal conferred upon the Attorney General and the DPP. Also, consistently with the insertion of a right of appeal of the DPP in s 5C, the 1987 amendments conferred a right of appeal on the DPP against interlocutory decisions in s 5F. 22 That it was the intention of the legislature to confer a right of appeal on the Attorney General and the DPP is apparent both from the Second Reading Speech and the Explanatory Note in respect of interlocutory orders (including an appeal from a stay). In his Second Reading Speech the Minister, the Hon Mr Sheahan, said: "The Attorney General or the Director of Public Prosecutions will be able to appeal as of right against such orders. This is the present position where orders are made quashing or staying an indictment in the District Court or Supreme Court." (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 17 November 1987, at 16088 (the Hon Mr Sheahan, Attorney General and Minister Assisting the Premier)) 23 The Explanatory Note to the Criminal Appeal (Amendment) Bill is to the same effect. It states: "Schedule 1 (2) provides for an appeal to the Court of Criminal Appeal against an interlocutory judgment or order … The Attorney General or the Director of Public Prosecutions would be able to appeal as of right (this is the present position on a stay of proceedings). Any other appeal would be by leave of the Court of Criminal Appeal …" 24 Whilst accepting that s 5F(2) confers a right of appeal (relevantly, in this case, upon the Attorney General), the respondent contended that the Attorney General must establish some interest in the proceedings in order to be entitled to exercise the right of appeal conferred by the subsection. In support of this argument, the respondent submitted that there was a basic principle of law that an Attorney General does not have "a roving commission to initiate litigation to disrupt settled outcomes in earlier cases": see Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; 209 CLR 372 at [76] per Gaudron and Gummow JJ. It was submitted that if the Attorney General had an appeal as of right under s 5F(2), that "usual principle" would be displaced. It was said that it was not apparent on the terms of s 5F(2) that Parliament intended this result and that it was contrary to the usual principles of statutory construction that clear words are necessary to displace existing rights. 25 The respondent referred the Court to the decision of Regina v Cheng [1999] NSWCCA 373; (1999) 48 NSWLR 616. In that case, Spigelman CJ (Dunford and Kirby JJ agreeing) stated at [32] that s 5F should be construed by application of the well-known presumption that Parliament did not, in any statutory enactment, "intend to modify fundamental principles or common law rights", unless it did so in "clear and unambiguous language". 26 The respondent's submission recognised that there were circumstances where the Attorney General may involve himself in proceedings to which he is not a party, but only if a Constitutional issue or a question concerning a charitable trust was raised. It was also conceded that if there was some other statutory provision entitling the Attorney General to intervene, or if there was the enforcement of public rights or the right of the Crown in issue, then he or she would have such right. 27 It is not necessary to review the extent of the Attorney General's function and role as discussed in Re McBain. It can be accepted that the Attorney General does not have a roving commission to intervene in criminal proceedings. Having accepted that, it is necessary to turn to the terms of the statutory provision. The "primary object of statutory construction" is to construe a provision of an Act so that "it is consistent with the language and purpose of all the provisions of the statute": see Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28 at [69]; 194 CLR 355; Bropho v Western Australia [1990] HCA 24; (1990) 171 CLR 1 at 20; Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 423; Palgo Holdings Pty Ltd v Gowans [2005] HCA 28; (2005) 221 CLR 249; and the Interpretation Act 1987, s 33. 28 The search for the proper purpose of a provision commences with its ordinary meaning. It is only if the grammatical meaning does not give effect to the purpose of the legislation that such a meaning cannot prevail: Kingston v Keprose per McHugh JA at 423; Bropho v Western Australia at [20]; and Palgo Holdings v Gowans per Kirby J at [35]. 29 Section 5F(2), by its express terms, confers upon both the Attorney General and the DPP a right of appeal against an interlocutory order made in committal or criminal proceedings. The terms of the provision are plain and unambiguous. The terms of s 5F(3) support this construction. The right of appeal conferred upon the DPP and the Attorney General by s 5F(2) is to be contrasted with the right conferred by s 5F(3) which requires "any other party to proceedings to which this section applies" to obtain leave to appeal against an interlocutory judgment or order. The DPP may initiate committal proceedings pursuant to s 8(1) of the Director of Public Prosecutions Act and in this case did so and was the other party to the proceedings. The combined effect of s 5F(2) and s 5F(3) is therefore clear. The Attorney General has a right of appeal. The DPP has a right of appeal. "Any other party" may appeal with leave. 30 The conferral of the right of appeal on the Attorney General is consistent with and may be seen as an extension of the statutory right of appeal that has existed since 1924. Both the Second Reading Speech and the Explanatory Note make this plain that it was the intention of the legislature to do so. Contrary to the respondent's argument that the effect of the section would be to confer a "roving commission" on the Attorney General to intervene in proceedings, the right conferred is specific: it is a right to appeal against orders quashing indictments: s 5C; and a right to appeal against interlocutory orders: s 5F. 31 There are other provisions of the Criminal Appeal Act where a right of appeal is directly conferred upon the Attorney General and the DPP. Section 5D provides that the Attorney General or the DPP may appeal to the Court of Criminal Appeal against any sentence to which the Crown is a party. Section 5DA confers a right of appeal upon the Attorney General or the DPP against a sentence that was reduced because of an undertaking to provide assistance when the assistance has not been provided. Section 5DB confers a right of appeal upon the Attorney General of the DPP against any sentence imposed by the Supreme Court or District Court on the conviction of a person for a related summary offence in the exercise of its jurisdiction under Div 7 of Pt 3 of Chapter 3 of the Criminal Procedure Act. 32 Senior counsel for the respondent submitted that these provisions were not of assistance on the question of statutory construction, as the legislation has been amended so frequently, that it could not be said that there was a cohesive scheme under the Criminal Appeal Act whereby a right of appeal was conferred upon the Attorney General, notwithstanding that the Attorney General was not a party to the proceedings. Rather, it was contended that the Act's provisions ought to be read individually, without reference to other provisions of the Act. Such an approach is, of course, contrary to the usual approach to statutory interpretation that a provision is to be construed in the context of an Act as a whole and that similar language or concepts used in different sections of an Act, should, unless some contrary intention was apparent, be given the same construction. But in any event, the language in these sections reinforces the construction I have given to the subsection. Not only does s 5F(2) state in plain and unambiguous terms that the Attorney General (and the DPP) has a right of appeal, it is apparent from the provisions to which I have just referred that the legislature has seen fit, in a variety of circumstances relating to criminal proceedings, to confer upon the Attorney General (and the DPP) a right of appeal. There is no circumstance, in my opinion, to give the section the limited operation for which the respondent contends. 33 In addition to the matters to which I have referred above, each of which is sufficient to counter the respondent's argument, the Attorney General's right of appeal under s 5F(2) has been endorsed in a number of decisions in this Court. The respondent contends that in those cases the right of appeal has been assumed and was not a matter in issue. The respondent submitted that in the cases where it had been accepted that there was a right of appeal, the Attorney General had a relevant interest, for example, where the Attorney General had intervened to raise a question of a public interest immunity, as was the position in Attorney General for New South Wales v Stuart (1994) 34 NSWLR 667. 34 In Attorney General for New South Wales v Stuart, a party to committal proceedings had caused a subpoena to be issued to the Commissioner of Police. In response to that subpoena, the Attorney General made a claim of public interest immunity. There was a challenge to jurisdiction on the basis that the Magistrate's ruling on the public interest immunity issue did not amount to an interlocutory decision for the purposes of s 5F. In this Court, Hunt CJ at CL (Smart and Studdert JJ agreeing), accepted that the Attorney General had an appeal as of right under s 5F(2). The respondent pointed out that the Attorney General in that case had been an active participant in the proceedings before the Magistrate in which the determination was made, so that it could not be said that he was an inter-meddler in the proceedings, as the respondent asserts is the case here. It was submitted, therefore, that this case did not advance the Attorney General's argument. 35 However, in Director of Public Prosecutions v Smith (1996) 86 A Crim R 308, the Attorney General had no specific interest in the proceedings. In that case, an application was made to a Magistrate in the course of committal proceedings for an order that two persons who were police informers and who had been named in the course of committal proceedings, should have their identities protected by the use of pseudonyms. An order was also sought restraining the publication of evidence that would identify them. The Magistrate refused the application. The Attorney General brought an appeal, both in the Court of Criminal Appeal and the Court of Appeal. (The proceedings in the Court of Appeal are not presently relevant.) 36 In the Court of Criminal Appeal proceedings, this Court (Gleeson CJ, Clarke and Sheller JJA) stated, at 309: "The appeal to the Court of Criminal Appeal is brought by the Attorney General, as of right , under s 5 F of the Criminal Appeal Act 1912 (NSW)." (Emphasis added)

Later, at 311, the Court held that the decision of the Magistrate to refuse the application concerning the use of pseudonyms and the suppression of the evidence was an interlocutory judgment or order that fell within the meaning of s 5F. The Court then observed that the police informers who had applied for the orders were not parties to the committal proceedings, but stated that the Attorney General and the DPP both had a right of appeal to the Court of Criminal Appeal pursuant to s 5F(2). Whilst it does not appear from the reported decision that the standing of the Attorney General under s 5F(2) to bring the proceedings as of right was under challenge, it is apparent from the Court's comment to which I have just referred that the question of standing to bring the appeal was a matter to which the Court turned its attention. Accordingly, Smith's case, at least, supports the Attorney General's construction that s 5F(2) confers an unqualified right of appeal and Stuart is not inconsistent with that proposition. 37 In order to give effect to the respondent's argument that the Attorney General or DPP must have some interest before it can appeal as of right under s 5F(2), words would need to be implied into the subsection. The effect of such an implication would be to require the Attorney General or the DPP to satisfy a precondition, unexpressed in the subsection, before the Court could have jurisdiction to entertain the appeal. Words may only be implied into a provision where the statutory purpose would otherwise be defeated: Kingston v Keprose per McHugh JA at 423; Ellavale Engineering Pty Limited v Pilgrim [2005] NSWCA 272; (2005) 2 DDCR 744. 38 The statutory purpose here was clear. It was to provide an unqualified right of appeal. There is nothing in the section or in any of the material to which the Court was referred to indicate that s 5F(2) was directed to some different purpose, such as that asserted by the respondent, namely, that the Attorney General or the DPP only has a right of appeal if either can establish some interest in the proceedings, such as raising a claim of public interest immunity. 39 Accordingly, in my opinion, the Attorney General has a right of appeal and the appeal before this Court is competent.

Legitimate forensic purpose 40 There was no dispute between the parties as to the principles to be applied in determining whether there was a legitimate forensic purpose in a party having access to documents. The real dispute in this case was the identification of the legitimate forensic purpose and whether such purpose had been established. As I have already indicated, the Magistrate rejected the legitimate forensic purpose advanced by the respondent but found that a different legitimate forensic purpose had been established. It is from that determination that the appeal is brought. 41 The basis upon which the appeal has been brought has placed the respondent in some difficulty. He submitted that if this Court rejected the legitimate forensic purpose as found by the Magistrate, he would want to reassert the legitimate forensic purpose that he had originally advanced. He could not, of course, cross-appeal, because he had an order in his favour and there is no procedure in the Court of Criminal Appeal for the raising of a point of contention, as exists under the procedures of the Court of Appeal. The respondent sought to deal with this dilemma by submitting that if the Attorney General was successful on the appeal, the Court should nonetheless refrain from setting aside para 3 of the subpoena. In short, his submission was that he should be permitted to advance the original forensic purpose that he had advanced before the Magistrate and if he succeeded in establishing that forensic purpose, the Court should not make any order on the appeal. 42 In indicating this proposed course, the respondent stated that he proposed to expand the legitimate forensic purpose that had been asserted before the Magistrate, so as to allege that the respondent had been induced or entrapped into engaging in the criminal conduct for which he has been charged, in particular, under s 25A of the Drug Misuse and Trafficking Act, in contravention of s 7 of the Law Enforcement (Controlled Operations) Act. 43 The respondent also informed the Court that an additional 'purpose' had become apparent since the delivery of the Crown brief, which included copies of the Controlled Operation Authorities, and he also wished to rely on that additional legitimate forensic purpose. 44 The respondent identified the additional legitimate forensic purpose in the following terms: "The plan of the proposed operation and the statement of the nature of the criminal activities in respect of which the operation is to be conducted and the nature of the criminal activity in respect of which an authority is sought ('the information') is relevant to determining whether:

(b) [the respondent] would have committed the offence but for the controlled operation

(c) [the respondent's] level of offending meets the standard required by s.25A of the Drugs Misuse and Trafficking Act." 45 The respondent's submission that this Court not make any orders under s 5F(5) (other than to dismiss the appeal) did not commend itself to the Court. For the Court to have entertained this proposed course of action would have involved a consideration of two matters not advanced before the Magistrate. First, the original legitimate forensic purpose was being proposed in different terms and the additional purpose had been formulated having regard to information the respondent now had in his possession, but which was not available to the Magistrate. Secondly, the Attorney General had no prior notice of the new matters sought to be argued. Accordingly, the Court determined that the appeal should be confined to an appeal against the determination made by the Magistrate. However, if the Court upholds the appeal, it will be without prejudice to the respondent's right to issue a further subpoena seeking to advance any other legitimate forensic purpose, other than that the subject of this appeal.

The Law Enforcement (Controlled Operations) Act 1997 46 The respondent's case, as recast by the Magistrate, was based upon possible impropriety flowing from the grant of the Controlled Operation Authorities pursuant to s 6 of the Law Enforcement (Controlled Operations) Act. The long title of the Act states that it is: "An Act with respect to the authorisation, conduct and monitoring of certain operations conducted by law enforcement agencies; and for other purposes." 47 A "controlled operation" is defined in s 3 to mean: "… an operation conducted for the purpose of:

(a) obtaining evidence of criminal activity or corrupt conduct, or

(b) arresting any person involved in criminal activity or corrupt conduct, or

(c) frustrating criminal activity or corrupt conduct, or

(d) carrying out an activity that is reasonably necessary to facilitate the achievement of any purpose referred to in paragraph (a), (b) or (c),

being an operation that involves, or may involve, a controlled activity." 48 A "controlled activity" is defined to mean "an activity that, but for section 16, would be unlawful". Section 16 provides: " 16 Lawfulness of controlled activities

Despite any other Act or law, an activity that is engaged in by a participant in an authorised operation in the course of, and for the purposes of, the operation is not unlawful, and does not constitute an offence or corrupt conduct, so long as it is authorised by, and is engaged in in accordance with, the authority for the operation." 49 Part 2 of the Law Enforcement (Controlled Operations) Act provides for the authorisation of controlled operations. Sections 5, 6 and 7 are central to the issue in this case. They provide as follows: " 5 Applications for authorities

(1) A law enforcement officer for a law enforcement agency may apply to the chief executive officer of the agency for authority to conduct a controlled operation on behalf of the agency."

An application is to be by means of a written document (a formal application) or, in the case of an urgent application, by such other means as available: s 5(2). The matter before this Court relates to a formal application, made under s 5(2). 50 An application must contain the following particulars: "5(2A) In any application, whether formal or urgent, the applicant must provide the following particulars:

(a) a plan of the proposed operation, (b) the nature of the criminal activity or corrupt conduct in respect of which the proposed operation is to be conducted, (c) the nature of the controlled activity in respect of which an authority is sought, (d) a statement of whether or not the proposed operation, or any other controlled operation with respect to the same criminal activity or corrupt conduct, has been the subject of an earlier application for an authority or variation of an authority and, if so, whether or not the authority was given or variation granted."

The Chief Executive Officer, to whom an application is made, may require additional information to be furnished: s 5(3). 51 Section 6 provides for the determination of applications as follows: " 6 Determination of applications

(1) After considering an application for authority to conduct a controlled operation, and any additional information furnished under section 5 (3), the chief executive officer: (a) may authorise a law enforcement officer for the law enforcement agency concerned to conduct the operation, either unconditionally or subject to conditions, or

(2) An authority to conduct a controlled operation on behalf of a law enforcement agency may not be granted unless a code of conduct is prescribed by the regulations in relation to that agency.

(3) An authority to conduct a controlled operation may not be granted unless the chief executive officer is satisfied as to the following matters: (a) that there are reasonable grounds to suspect that criminal activity or corrupt conduct has been, is being or is about to be conducted in relation to matters within the administrative responsibility of the agency, (b) that the nature and extent of the suspected criminal activity or corrupt conduct are such as to justify the conduct of a controlled operation, (c) that the nature and extent of the proposed controlled activities are appropriate to the suspected criminal activity or corrupt conduct, (d) that the proposed controlled activities will be capable of being accounted for in sufficient detail to enable the reporting requirements of this Act to be fully complied with.

(4) In considering the matters referred to in subsection (3), the chief executive officer must have regard to the following: (a) the reliability of any information as to the nature and extent of the suspected criminal activity or corrupt conduct, (b) the likelihood of success of the proposed controlled operation compared with the likelihood of success of any other law enforcement operation that it would be reasonably practicable to conduct for the same purposes,

(c) the duration of the proposed controlled operation." 52 Section 7 proscribes the authorisation of entrapment activities. It provides: " 7 Certain matters not to be authorised

(1) An authority to conduct a controlled operation must not be granted in relation to a proposed operation that involves any participant in the operation: (a) inducing or encouraging another person to engage in criminal activity or corrupt conduct of a kind that the other person could not reasonably be expected to engage in unless so induced or encouraged …" 53 Relevantly, for present purposes, an authority to conduct a controlled operation is granted by means of a written document: s 8(1). Section 8(2) prescribes the content of the authority as follows: "8(2) An authority, whether formal or urgent: (a) must identify the operation by reference to the plan referred to in section 5 (2A) (a), and …

(e) must identify: (i) with respect to the law enforcement participants, the nature of the controlled activities that those participants may engage in, and (ii) with respect to the civilian participants, the particular controlled activities (if any) that each such participant may engage in, and … (h) must specify any conditions to which the conduct of the operation is subject under section 6 (1) (a)." 54 Section 13 provides for the effect of an authority: " 13 Effect of authorities

While it has effect, an authority for a controlled operation:

(a) authorises each law enforcement participant to engage in the controlled activities specified in the authority in respect of the law enforcement participants …" 55 Section 13A protects the validity of an authority in the case of a procedural defect in the following terms: " 13A Defect in authority

An application for an authority or variation of authority, and any authority or variation of authority granted on the basis of such an application, is not invalidated by any procedural defect, other than a defect that affects the substance of the application, authority or variation in a material particular." 56 Parts 3 (ss 14 to 20) and 4 (ss 21 to 24) of the Law Enforcement (Controlled Operations) Act govern the conduct and monitoring of controlled operations respectively. Section 15 provides that within two months after completing an authorised operation, the principal law enforcement officer for the operation must cause a report on the operation to be given to the Chief Executive Officer. Section 16 has already been referred to above. Codes of conduct are prescribed by regulation under s 20. 57 The Chief Executive Officer must cause written notice of the granting of an authority under s 6 and of receiving a report of the operation under s 15, to be given to the Ombudsman within 21 days of either the grant of the authority: s 21(1)(a); or the receipt of the report: s 21(1)(b). The Ombudsman has an obligation to inspect the records of each law enforcement agency at least once every 12 months and may do so at any time to ascertain whether or not the requirements of the Law Enforcement (Controlled Operations) Act are being complied with: s 22. The Ombudsman must also provide an annual report to Parliament of the work and activities undertaken by the Ombudsman under the Law Enforcement (Controlled Operations) Act: s 23.

Principles governing legitimate forensic purpose 58 The principles that govern the application of a party to produce documents pursuant to a subpoena are well settled. In this regard, the basic principle was stated by Jordan CJ in Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 575: "… a party is no more entitled to use a subpoena … than he is a summons for interrogatories, for the purposes of 'fishing', i.e., endeavouring, not to obtain evidence to support his case, but to discover whether he has a case at all …" (Emphasis added) (Citations omitted)

Mere relevance not sufficient 59 It is not sufficient for a party seeking production of documents to merely establish that such documents are or may be relevant. This is apparent from the comments of Mahoney AP in Carroll v Attorney-General for New South Wales (1993) 70 A Crim R 162. In that case, Mahoney AP was concerned with the question whether access should be given to certain documents that had been subpoenaed in criminal proceedings. His Honour said, at 181: "… the court must, in general, be satisfied that the documents are relevant to an issue for decision by the court in the litigation. It is not open to a party, as on a 'fishing expedition', to subpoena documents merely in order to determine whether they may be relevant and may be of assistance to his case in the proceeding ." (Emphasis added) 60 His Honour stated, at 182, that whilst a party must show, or it must appear, that the subpoenaed documents are relevant to an issue in the proceedings, "mere relevance is not enough". His Honour continued: "In the case in which the party did not know what was the nature or the contents of the documents, the position would be plain. He could not claim to look at the documents merely to see whether they contained something which might be relevant or help his case. But in this case it is accepted that the documents are affidavits directed to showing 'that there are reasonable grounds for' the 'suspicion or belief' referred to in s 16(1). Accordingly, prima facie the documents are relevant to the issue to be decided, viz, whether there was in fact no material that could reasonably justify the relevant belief. But, in my opinion, it is not sufficient for a party subpoenaing the document to say 'the document is relevant because, if it does anything, it establishes the case against me'. He must be able to indicate that the document is relevant in the sense that it may assist his case. In the present case, that could not be claimed. Nor was it shown. At best, the claim was: 'I wish to see the document to see if it may assist my case.' That, in my opinion, is not sufficient." 61 Senior counsel for the respondent submitted that the judgment of Mahoney AP did not represent a majority statement on this issue, nor had it been endorsed or applied in later decisions. 62 Neither Kirby ACJ (as his Honour then was) (who dissented on the facts) nor Hunt AJA (who agreed with Mahoney AP in the result) made any reference to "mere relevance". However, each applied a test of "forensic purpose" and the need for it to be "on the cards" that the documents would "materially assist the accused". Accordingly, the second element of the 'test', that is, that it must be "on the cards" that documents would materially assist the case, subsumes in it the notion that "mere relevance" is insufficient. Documents may be relevant even if they do not assist a party's case. To that extent therefore, there is no difference in principle in the test applied by each of the members of the Court. 63 But in any event (and contrary to the respondent's submissions) the statement of Mahoney AP has been applied in subsequent decisions in New South Wales and Victoria: see Propend Finance Pty Ltd v Commissioner of the Australian Federal Police (1994) 72 A Crim R 278 at 282-283; Bruce Harvey v State of New South Wales (Supreme Court of New South Wales, per Johnson J at 3-4, 15 June 2005, unreported); R v Robinson (1996) 89 A Crim R 42 at 61; Gardiner v Regina [2006] NSWCCA 190; (2006) 162 A Crim R 233 at [88]; and Re Don [2006] NSWSC 1125 at [6].

The correct test 64 The test for determining whether a party is required to produce documents pursuant to a subpoena was stated by Simpson J (Spigelman CJ and Studdert J agreeing) in Regina v Saleam [1999] NSWCCA 86 at [11], in the following terms: "The principles governing applications [for an order that documents not be produced] are no different from those governing applications for access to documents produced in answer to a subpoena. Before access is granted (or an order to produce made) the applicant must (i) identify a legitimate forensic purpose for which access is sought; and (ii) establish that it is 'on the cards' that the documents will materially assist his case. So much was established in earlier proceedings brought by this applicant: R v Saleam (1989) 16 NSWLR 14, per Hunt CJ at CL; see also R v Ali Tastan (1994) 75 A Crim R 498 per Barr AJ, as he then was."

(I will refer to this case as R v Saleam [1999].) 65 The genesis of the expression "on the cards" is to be found in the judgment of Gibbs CJ in Alister v R [1983] HCA 45; (1984) 154 CLR 404 at 414. In Alister, the High Court was concerned with a subpoena issued to the Australian Security Intelligence Organisation (ASIO) in the course of a criminal trial for conspiracy to murder and attempt to murder. The police (acting upon information provided by an informant) had been able to foil the conspiracy, which involved an intention to murder by exploding a bomb near the intended victim's home. The case was notorious - the accused members of Ananda Marga had been suspected of placing a bomb outside the Hilton Hotel in Sydney, in an attempt to kill the Prime Minister of India. The subpoena had required ASIO to produce all files and documents relating to the informant in respect of ASIO's investigation of Ananda Marga. The Attorney General for the Commonwealth objected to the production on security-based public interest grounds. 66 Gibbs CJ, at 414, noted that the applicants who had sought the production of the documents were not able to state whether or not the documents existed, or if they did, whether they were likely to assist the applicant's case. His Honour observed, however, that it was not unreasonable to believe that documents were in existence and that "one would guess that any reports … would be adverse to the applicants". His Honour referred to the conflicting position in England as to the circumstances in which a court would inspect documents in a case where public interest immunity was claimed. It is necessary to set out that passage in full, in order to understand the context in which his Honour introduced the terms "on the cards". He said: "Just as in the balancing process the scales must swing in favour of discovery if the documents are necessary to support the defence of an accused person whose liberty is at stake in a criminal trial, so, in considering whether to inspect documents for the purpose of deciding whether they should be disclosed, the court must attach special weight to the fact that the documents may support the defence of an accused person in criminal proceedings. Although a mere 'fishing' expedition can never be allowed, it may be enough that it appears to be 'on the cards' that the documents will materially assist the defence ." (Emphasis added) (Citations omitted) 67 It is both important and instructive to understand the manner in which Gibbs CJ saw this test operating at a practical level. He said, as a continuation of the passage just quoted: "If, for example, it were known that an important witness for the Crown had given a report on the case to ASIO it would not be right to refuse disclosure simply because there were no grounds for thinking that the report could assist the accused. To refuse discovery only for that reason would leave the accused with a legitimate sense of grievance, since he would not be able to test the evidence of the witness by comparing it with the report, and would be likely to give rise to the reproach that justice had not been seen to be done." 68 The approach of Gibbs CJ in Alister has been consistently adopted and applied in this State. An early, useful example is Principal Registrar of the Supreme Court v Tastan. Barr AJ (as his Honour then was) said, at 499, that there will be no legitimate forensic purpose if, "all the party is doing is trying to get hold of the documents to see whether they may assist him in his case": see The Commissioner for Railways v Small. His Honour noted that there was nothing in the case before him that made it appear to be "on the cards" that anything contained in the subpoenaed documents was likely to materially assist the accused in his defence. His Honour considered, at 506, that the defendant wanted access to the documents "to see whether he had a [defence]". 69 Hunt J (Carruthers and Grove JJ agreeing) applied the "on the cards" test in an earlier Saleam case: R v Saleam (1989) 16 NSWLR 14, and permitted access to documents in circumstances that were redolent of the example given by Gibbs J in Alister. The subpoena in this case had been issued during the appeal process. It was argued that there was material in the subpoenaed material that would indicate that there had been a miscarriage of justice at trial. The accused had been told by a police officer seconded to the Ombudsman's office that "that there were discrepancies in the police case" at the trial. It was not disputed that such a statement had been made. The accused claimed that the subpoenaed material would be relevant to impugn the credit of the principal Crown witness at trial. The Court allowed access to the documents on the basis that it was "at least 'on the cards' that the documents in question would assist the appellant in his appeal and that there was therefore a legitimate forensic purpose for the production of the documents". 70 The Attorney General indicated that Simpson J's formulation in R v Saleam [1999] represented the commencement of a line of authority in which the test for the production of, or access to, documents, was specifically stated as comprising two steps: a legitimate forensic purpose and that it was "on the cards" that the documents would materially assist the case. However, in stating the test in this specific 'two step' way, her Honour did not state any new principle. As I have already stated at [64], in the authorities that preceded R v Saleam [1999], including Alister, the courts, in determining whether access would be granted to documents sought on subpoena, have always applied a test that involves determining whether each of the factors identified by Simpson J had been established.

Other statements of the test 71 The respondent did not dispute that the 'two step' process represented the law, as it stood in this Court, in respect of a challenge of the type that was made to the production of documents here. However, he referred the Court to two recent decisions, both of first instance judges, to demonstrate that there has been a change in the principles (or at least the emphasis found in those principles) that apply from those stated by Simpson J in R v Saleam [1999]. The first is Roads & Traffic Authority of NSW v Conolly [2003] NSWSC 327; 57 NSWLR 310 per Adams J. The second is Ragg v Magistrates' Court of Victoria & Corcoris [2008] VSC 1 per Bell J. 72 In Roads & Traffic Authority of NSW v Conolly, Adams J referred to a decision of Balmford J in Fitzgerald v Magistrate's Court of Victoria [2001] VSC 348; [2001] 34 MVR 448, in which her Honour, at [20], stated, "I note that in the second edition of the Oxford English Dictionary 'on the cards' is defined as meaning 'within the range of probability'". Adams J said at [12]: "Accepting this to be so, it seems to me that the relevant "range" is therefore between the barely probable and highly probable. With respect, it seems to me that this area of the law is bedevilled with metaphors. I think the essential notion is that there is a reasonable chance that the material sought will assist the defence. If it is reasonable to infer that the material sought exists and that it is relevant to an issue, though its content is unknown, it will almost invariably be logically the case (as it seems to me) that such a chance exists, even though it might be thought to be unlikely. Seeking that material therefore seems to me to be a legitimate forensic purpose, providing of course that the factual issues and the character of the material sought are precisely identified ." (Emphasis added) 73 Roads & Traffic Authority of NSW v Conolly was referred to in Ragg v Magistrates' Court of Victoria. The respondent submitted that it was referred to with approval. I am not sure that is correct. In Ragg, Bell J referred to Roads & Traffic Authority of NSW v Conolly in an historical sense, during the course of his consideration of whether the test stated by Gibbs CJ in Alister had "perhaps outlived its usefulness": see Ragg at [92]-[94]. Bell J also considered that Gibbs CJ did not use the metaphor to explain a test of "probability". 74 Bell J referred to Roads & Traffic Authority of NSW v Conolly and two decisions of the Victorian Supreme Court to determine how the courts should state "with greater certainty the test given to us by Gibbs CJ". His Honour referred to DPP v Selway [2007] VSC 244, where Cummins J had stated: "On the basis of the above authorities, I consider the true test is whether there is a reasonable possibility that the sought-for information would materially assist the defence. Probability is too high a standard. Mere possibility is too low. The adverb 'reasonably' gives proper scope to the judge to determine the issue responsibly and objectively. Such a standard also is consonant with the principles of open justice." 75 Bell J then said, at [95], that "I would adopt this approach, not only because it is not clearly wrong, but because I think it is correct. More specifically, a 'reasonably possibility' test expresses in more certain language what Gibbs CJ probably had in mind when he used the 'on the cards' metaphor in Alister v R , gives proper effect to the underlying fundamental duty of the court to ensure a fair trial … With respect, I would not follow the judgment of Balmford J in Fitzgerald v Magistrates' Court that 'on the cards' means 'within the range of probability' because it is clearly incorrect." (Citations omitted)

His Honour concluded, at [96]: "In summary, an accused person is entitled to seek production of such documents as are necessary for the conduct of a fair trial between the prosecution and the defence of the criminal charges that have been brought. When objection is taken, the accused must identify expressly and with precision the forensic purpose for which access to the documents is sought. A legitimate purpose is demonstrated where the court considers, having regard to its fundamental duty to ensure a fair trial, that there is a reasonable possibility the documents will materially assist the defence. That is a low threshold, but it is a threshold." 76 His Honour did not, in his working out of the most appropriate statement of the test, directly endorse the language of Adams J in Roads & Traffic Authority of NSW v Conolly, nor, more relevantly, for present purposes, did he engage in any critical analysis of his Honour's approach. Further, although the Victorian Charter of Human Rights and Responsibilities Act 2006 which commenced on 1 January 2008 did not apply to the proceedings, Bell J expressed the view that international human rights were relevant to the question being determined and made frequent references throughout the judgment to the International Covenant on Civil and Political rights. 77 For myself, I have some difficulty with Adams J's approach. In the first place, it uses quite different language from that which has been applied in this State consistently since Alister. Further, the language used by Adams J has its own difficulties. The word "chance", used by his Honour, is itself a word of equivocal meaning. According to the Oxford English Dictionary, it can mean either a "possibility" or a "probability". It is apparent from Adams J's reasoning on the point that he intended to use it in the sense of "possibility". On that reading, the test appears to be the same as that endorsed by Bell J in Ragg v Magistrates' Court of Victoria. However, it is the next portion of Adams J's comments that concern me. I will set out again the passage: "If it is reasonable to infer that the material sought exists and that it is relevant to an issue, though its content is unknown, it will almost invariably be logically the case (as it seems to me) that such a chance exists, even though it might be thought to be unlikely. Seeking that material therefore seems to me to be a legitimate forensic purpose, providing of course that the factual issues and the character of the material sought are precisely identified." 78 In my opinion, this passage substantially changes the notion contained in the earlier passage, that there must be a 'reasonable chance' (or possibility) that the documents will assist the accused's case, and reduces the test to one of mere relevance, provided the documents exist (or it is reasonable to infer that the documents do exist). It is apparent that this is the effect of his Honour's reasons is apparent from his comment that if the "material sought exists and … is relevant to an issue, though its content is unknown, it will almost invariably be logically the case … that such a chance [that the documents will assist the accused's case] exists" (additional emphasis). His Honour's additional comment, "even though it might be thought to be unlikely" (that the documents will assist the accused's case) pitches the test at a much lower threshold than that contained in the test stated in R v Saleam [1999], that it must be "on the cards" that the documents will materially assist the case. Indeed, it casts the test as a lower threshold than is contained in the test of "reasonable chance" that Adams J himself used. 79 The likely effect of his Honour's approach is to create a situation whereby, provided relevance is established, there will almost always be a "reasonable chance" that the material will assist an applicant seeking production of documents to establish the case proposed be made at the trial. As is apparent from Alister, Carroll and R v Saleam [1999], something more than that is required and in my opinion the approach of Adams J should not be followed. 80 The test stated by Bell J in Ragg v Magistrates' Court of Victoria doesn't necessarily have the same effect as that which flows from the reasons of Adams J taken in their entirety. In particular, I do not understand Bell J to be indicating that mere relevance is sufficient. However, I see no reason to depart from the language used by Simpson J in this Court in R v Saleam [1999]. To do so only invites confusion. This Court has already stated what the test is and in my opinion, should continue to apply that test in accordance with the language used in the form in which it has stood since Alister and R v Saleam [1999].

Legitimate forensic purpose as found by the Magistrate 81 At this point it is necessary to return to the legitimate forensic purpose as found by the Magistrate to determine whether, in accordance with the principles stated in R v Saleam [1999], there is a legitimate forensic purpose and whether it is "on the cards" that the material subpoenaed will assist the respondent's defence at trial. 82 It was relevant to the Magistrate's determination that the documents subpoenaed were documents that were required to be brought into existence by the provisions of s 5(2A) of the Law Enforcement (Controlled Operations) Act. The Magistrate considered that the respondent should be allowed access to the documents to "check" that there had been compliance with the requirements of s 5(2A). He said that this was a legitimate forensic purpose. His Honour then found that if there had been non-compliance with s 5(2A), it was "on the cards" that there could be mounted an argument under s 138 of the Evidence Act. The Attorney General challenged the correctness of this reasoning. 83 In this case, the nature of the documents, or at least some of them, was known at the time of the issue of the subpoena. Paragraph 3 of the schedule to the subpoena required production of at least the documents that had been brought into existence to satisfy the requirements of s 5(2A) of the Law Enforcement (Controlled Operations) Act. To that extent, it could not be said that the respondent was seeking to ascertain whether any documents existed, and if they existed, what those documents were. The s 5(2A) documents would be relevant to the criminal proceedings, because they were brought into existence for the purposes of authorising the purchase side of the supply transaction, which formed the actus reus of each offence with which the respondent was charged. The question remains, however, whether it has been demonstrated that it is "on the cards" that those documents will materially assist the respondent's case. 84 Notwithstanding that the subpoena sought documents that were identifiable, I am of the opinion that the legitimate forensic purpose identified by the Magistrate amounts to no more than a proposition that the respondent was entitled to engage in a "fishing expedition" to ascertain whether there had been compliance with s 5(2A). That is apparent from the terms in which the Magistrate identified the forensic purpose. There was no material before the Magistrate to indicate that there had been, or might have been, non-compliance with s 5(2A). 85 This is acknowledged in his Honour's comment that there should be access to the documents to enable the respondent to check whether there had been compliance with s 5(2A). In other words, the Magistrate identified the legitimate forensic purpose in terms that meant the respondent needed to have access to the documents "to discover whether he has a case at all": see The Commissioner for Railways v Small at 575. As Jordan CJ stated in that case, a party is not entitled to use a subpoena for that purpose. 86 This was not a case like, or analogous to, the example given in Alister where an important witness had given a pre trial report so that it could be said that it was "on the cards" that the document "would materially assist" the respondent by permitting cross-examination of the witness based on the earlier report. Nor was it a case like that which Hunt J had dealt with in Saleam, where there was some evidence that there was a problem with the evidence given at trial and the material subpoenaed may have revealed whether that was the case. Here, there was no suggestion that the police witnesses had made earlier statements that should be available for the purposes of cross-examination. Nor was there any suggestion whatsoever that there was any failure to follow correct procedures, or that any wrongdoing had been engaged in. In short, there was nothing at all to suggest that it was "on the cards" that the subpoenaed material would "materially assist the [respondent's case". 87 It follows, in my opinion, that the Magistrate erred in law in allowing access to the material referred to in para 3 of the Schedule to the subpoena.

Proposed orders 88 I have already referred above to the manner in which the Court determined that this matter should proceed, namely, upon the error, if any, established on the Magistrate's decision. As I have concluded that the Magistrate erred in law, the appeal should be allowed. In allowing the appeal, I would again stress that that is to be without prejudice to the respondent's right to issue a further subpoena seeking to advance any legitimate forensic purpose other than that subject of determination in this appeal. 89 It is not apparent from the transcript that the Magistrate made a formal order dismissing the application to set aside para 3 of the schedule to the subpoena and the Court has not been favoured with a formal copy of the Local Court's order. However, as his Honour stayed the operation of his determination, it must follow that he dismissed or rejected that application. I will formulate the orders on the appeal on the assumption that an order was made. Having found the error to which I have referred, the appropriate order, in my opinion, is to strike out para 3 of the schedule to the subpoena. Accordingly, the formal orders I would propose in the matter are as follows:

2. Set aside the determination of the Magistrate, his Honour G Cocks, made on 21 July 2006, dismissing the application to set aside paragraph 3 of the schedule to the subpoena issued on 24 May 2006;

3. Strike out paragraph 3 of the subpoena. 90 JAMES J: I agree with Beazley JA. 91 KIRBY J: I agree with Beazley JA. **********

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