Procedural history
4The procedural history of this matter has been fraught; it has been attended by missteps at almost every stage of the process. This Court does not have the full procedural history before it.
5On 25 November 2009 a subpoena was issued to the Commissioner of Police on behalf of the respondent seeking four categories of documents. The Commissioner, by notice of motion filed in the District Court, sought to set aside paragraphs 1, 2 and 4 to the schedule to the subpoena: R v Lipton, Richard [2010] NSWDC 187 at [1] (King DCJ). Neither the subpoena nor the notice of motion is otherwise before this Court. However, as appears from the judgment of this Court in Lipton v R [2010] NSWCCA 175 at [4], paragraph 4 in the schedule referred to "[a]ll written or electronic records of communications between any officer of the NSW police and Melanie Brown".
6Again as explained by King DCJ, the principal ground in the motion to have the subpoena set aside was the absence of any legitimate forensic purpose for the production of the documents. A second ground, if the Court were satisfied as to legitimate forensic purpose, was that "any documents would be protected by a claim of public interest immunity": at [5]. King DCJ was not satisfied that there was a legitimate forensic purpose and ordered that paragraphs 1, 2 and 4 of the schedule to the subpoena be set aside: at [26]. As accepted by King DCJ and explained in this Court by McClellan CJ at CL (Hislop J and Barr AJ agreeing) there might have been a legitimate forensic purpose in establishing that, if Ms Brown took steps to coerce, pressure or entice the respondent to deal with the undercover officer to an extent or in a manner which he would not otherwise have done, Ms Brown had acted as an agent of the authorities. Such conduct could have provided an element of mitigation of sentence. However, there was no evidence from the respondent to demonstrate that Ms Brown had encouraged him to commit the offences, absent which the question of her relationship with the authorities did not arise. Accordingly, this Court upheld the ruling of King DCJ and dismissed the application for leave to appeal.
7McClellan CJ at CL anticipated that the setting aside of those paragraphs of the subpoena might not be an end of the matter as the respondent might issue a further subpoena and bring evidence that Ms Brown had acted to coerce, pressure or entice him to deal with the undercover officer: at [22]. Depending on the nature of that evidence, the reasoning continued, it might be possible to infer from matters already known which suggested that Ms Brown was acting in collusion with the police, "together with the fact that a volume of documents has been produced to the Court in answer to the relevant paragraphs of the schedule to the subpoena", that the documents might materially assist the respondent's case on sentence. His Honour further noted that paragraph 4, in its original form, was "extremely wide and may capture documents which have no relevance to the present applicant": at [23].
8The initial response of the Commissioner to the subpoena, as revealed above, is puzzling for two reasons. First, the production of documents to the Court (however that occurred) was inconsistent with the application to "set aside the subpoena". Secondly, and more importantly, the production of documents identified as answering the description in paragraph 4 of the subpoena, namely recording communications between Ms Brown and the police, constituted an implicit acceptance of the fact of that relationship. To then claim public interest immunity on the basis that disclosure of the documents might reveal the existence of a police informer was, in effect, to disclose precisely that which was sought to be protected.
9The Court is not privy to the decision-making which underlay those actions, but they sowed the seeds for more than two further years of attempts to undo the consequences. It is appropriate, therefore, to note that there were alternative courses available which could have avoided the unfortunate consequences which have come to pass.
10Relevantly for present purposes, there are two broad categories of case involving police informers and disclosure of their identity. In the one case, the accused suspects, or even knows, that the police have relied upon information supplied to them by third parties, but does not know the identity of the informant. The other category, which includes the present case, arises where the accused knows very well the identity of the individual suspected of being an informer, but does not know whether that individual has a relationship with the police. In the latter case, to disclose the existence of documents recording that relationship may be to concede the very point which the claimed immunity is designed to preserve. The situation is not unique: it arose in the seminal case of Alister v The Queen [1984] HCA 85; 154 CLR 404. In Alister, the case against the accused had depended significantly on the evidence of a Mr Richard John Seary, who had joined the Ananda Marga, of which the accused were members, as an undercover agent. In order to attack his credibility, the accused had sought access to any document relating to the applicants supplied by Mr Seary to ASIO. Whether he was an agent for ASIO was not known. The trial judge set aside the subpoena directed to ASIO. The appeal challenged that order. However, as noted by Brennan J, at 452, a different procedural course might have been appropriate:
"Perhaps the order to set the subpoena aside was wrong in any event, the appropriate order being an order excusing the officer in charge of ASIO from the obligation to state whether ASIO had possession of documents answering the description set out in the subpoena and from the obligation to produce any such documents."
That course should have been adopted by the police in the present case, but was not.
11It is convenient now to return to the procedural history. Rather than issue a further subpoena, the respondent sought a stay of the sentencing proceeding "until such time as the Crown discloses to the defence materials relating to communications between members of the New South Wales Police Force and Melanie Brown in relation to the investigation into the matters which are the subject of the charges against the offender, currently in the possession of the New South Wales Police": R v Richard Lipton (No 2) [2010] NSWDC 295 (Finnane DCJ) at [7]. (The notice of motion itself, dated 11 October 2010, was not before this Court.) The District Court did not make an order in that form, but did order a stay until the Director of Public Prosecutions had sought and obtained from the police all documents pertaining to the relationship between the police and Ms Melanie Brown; had formed an opinion as to whether the documents may be relevant to any matter of sentence and had communicated that opinion to the respondent's lawyers. In the course of his judgment Finnane DCJ stated:
"13. What is abundantly clear from a consideration of the judgments of Judge King and the Court of Criminal Appeal is that there is material linking Melanie Brown to the offender and to the Police and it should be obvious to the prosecuting authority, the Director of Public Prosecutions that there is material available which is relevant or possibly relevant to an issue in the case, namely the culpability of the offender and whether this is lessened in any way by the activities of and relationship with Melanie Brown.
14. It also seems obvious to me that there could be no public interest in suppressing her name since it is publicly known. Part of her role is already known and there is every reason to believe that Police officers have in their possession material that could relate to the relevant issues in the sentencing of the offender.
15. What is also clear is that Mr Allison has taken the view that because there has been a claim of public interest immunity by the Police, he has no obligation to inquire further."
12It will be necessary to return to that reasoning when reconsidering the question of legitimate forensic purpose and the consistency of that reasoning with the 2010 decision of this Court. The order was the subject of an appeal by the Director of Public Prosecutions, which was dismissed: Regina v Richard Lipton [2011] NSWCCA 247. Judgment was delivered on 17 November 2011.
13On 8 December 2011 the Solicitor for Public Prosecutions wrote to the respondent's solicitor advising that the Director had "reviewed all documents pertaining to the relationship" and had formed the opinion that "there are documents amongst them that may be relevant to a matter of sentence of the offender" but that those documents were, in the Director's view, subject to a claim of public interest immunity.
14Despite the limitations on the views expressed by the Director, namely that only some of the documents pertaining to the relationship between the police and Ms Brown may be relevant to sentence, it appears that the Commissioner then abandoned any argument based on lack of a legitimate forensic purpose. Further, although the subpoena, originally issued on 25 November 2009, was potentially wider than the terms of the stay order and the relevant paragraph had in any event been set aside at a hearing on 16 December 2011 in the District Court, senior counsel for the respondent called upon the subpoena and the Commissioner's representative handed up a bundle of documents which had been prepared in response to the subpoena, but sought to maintain the objection based on public interest immunity. (Whether the documents so produced were the same as those which had apparently been produced to the Court in 2010 is not clear.) The claim based on immunity was formalised by a notice of motion returnable on 16 December 2011, supported by both an open and a confidential affidavit. Paragraph 4 of the open affidavit stated:
"The Commissioner makes a claim for public interest immunity in relation to the disclosure of information, whether adduced in evidence or contained in a document, that could reveal or tend to reveal the identity of any person who has assisted police in their investigations or that could reveal details of any information in police intelligence holdings available for use in current or future criminal investigations."
15The affidavit further stated that the deponent, being an Assistant Commissioner of Police, had no objection to the Court inspecting the confidential exhibit and affidavit but submitted that access to the confidential material "beyond the Court would be as harmful to the public interest as would be the disclosure of the information sought to be protected": paragraph 15. The reference to "the Court" in this context was clearly intended to be a reference to the judge, as the orders sought in the motion, in support of which the affidavit was read, included a denial of access "to all parties to the proceedings": order 4(b).
16After receiving the material, Finnane DCJ purportedly closed the court: Tcpt, 16/12/11, p 3 (6). There was, however, a dispute as to whether the respondent's father should be entitled to remain in the Court. At the request of the respondent's counsel, the judge indicated that he would allow the respondent's father to remain. In response to an incomplete request by counsel for the Commissioner to be heard on that issue, the judge stated:
"I'm not going to publicly reveal what's in the documents am I, I mean the Courts have frank discussions even in a closed court, I don't reveal what's in them. I think that would be entirely wrong were I to say Well look let's be frank, let me tell you all what's in these. I can't really do that ...."
17Senior counsel for the respondent then identified the forensic purpose to be relied on in the following terms at pp 4-5:
"More precisely the position is that this was an operation under the auspices of the New South Wales Crime Commission carried out by the New South Wales police and it involved what I've seen ... described as a well known technique of ramping up the amounts of the drug until such time as the amounts in total supplied by the offender exceeded the large commercial limit and of course the minute that that happened they were then arrested. ... The precise point that Mr Lipton makes is that he got out of his depth and out of his league when the amounts got bigger but Melanie Brown was encouraging him to continue to deal with the undercover officer because she said he could be trusted and because she needed the money because she had lost her job and he ought to get on with it."
18There then ensued debate with counsel for the Commissioner in the course of which the primary judge made remarks which could have been understood to be disclosing the contents of the documents before a member of the public who would have been in a position to relay the remarks to the respondent (and indeed the world at large). At the end of the hearing, the primary judge stated in open court (Tcpt, p 19 (45)):
"I order a transcript from today. It can be made available to each of the parties. Mr Lipton can have a free copy, but I make it plain: I will not make that transcript available to the press."
19To the extent that the order closing the Court had not already been subverted, that step effectively revoked it. The Court reconvened on 24 February 2012, at which stage the primary judge delivered a judgment. It appears from an exchange with counsel for the Commissioner after the commencement of the delivery of the judgment that although the Court was again "closed", the judge allowed the respondent's parents and brother to remain: Tcpt, 24/02/12, p 2. No constraint was placed on communication by them to any person. His Honour then indicated that some of the material should be suppressed. He said (Tcpt, p 5):
"The material showing contact between her and police officers, what she said to them about the offender, the information that she passed on, in my opinion, is material which can be and should be shown to the offender's legal representatives because it is possible that it may assist them in some way in presenting their arguments on sentence.
In my opinion, the interests of the offender being able to present a proper case outweigh any possible claim of public interest in suppression of the information and, therefore, I proposed to reveal that material, that is, the material that I have looked at which I consider should be revealed. I do not have it here at this very minute and I will have to make it available in an edited form.
The use that can be made of it is a matter for the parties. I would make an order that the legal representatives of the parties can use it for these proceedings, and to the extent necessary to do so they can discuss the material with their client. But the material cannot be used for any other proceedings and if they judge there is no use they can make of the material, it should be handed back to the Court and will be given back, then, to the police."
20Following the delivery of the judgment, it appears that the Court remained "closed". Counsel for the Commissioner then sought a stay of the "orders" for 28 days to enable a consideration of an appeal. The primary judge determined that he would adjourn for a period of seven days to allow the Commissioner to consider his position, whilst commenting in pejorative terms on the application. He then directed that his "remarks today be taken out and made available to the parties forthwith": Tcpt, p 2 (13). After that, and following some further discussion, counsel for the Commissioner noted that it might be necessary to obtain the documents which were to be released and the editing which had been proposed. The primary judge then responded that he was simply deleting material which might be used to locate Ms Brown and proceeded to describe the contents of the material to be released, in summary terms: Tcpt, p 3 (12)-(21). That statement would also have been made available, presumably, to each of the parties "forthwith".