Perish, Anthony v R; Lawton v R

Court of Criminal Appeal (NSW)|2015-05-29|Before: Hulme J, Mr P, Hoeben CJ, Adamson J, Price J

Judgment

HIS HONOUR: Anthony John Michael Perish and Matthew Robert Lawton ("the respondents") have appeals against conviction pending before the Court. They are listed to be heard (together with a similar appeal by Andrew Michael Perish) on 8-9 September 2015.
On 1 July 2014, the Registrar of the Court of Criminal Appeal issued at the request of the respondent Perish an Order to Produce directed to the NSW Police Service requiring the production on 30 July 2014 of the following: "All documents, notes, or other material relating to the payment of a reward for information in the investigation into the death of Terrence Falconer."
The respondent Lawton sought the issue of an Order to Produce in identical terms on 4 February 2015.
The Commissioner of Police ("the applicant") has applied to have the Order to Produces set aside as an abuse of process because of a lack of any legitimate forensic purpose. Alternatively, the applicant objects to producing the documents because of public interest immunity.

Chronology of relevant events

Terrence Falconer was abducted and murdered on 16 November 2001. Police established Strike Force Tuno to investigate. In 2008, it evolved into Strike Force Tuno-2 with terms of reference that included other unsolved crimes. Detective Inspector Gary Jubelin was its supervisor.
On 27 February 2008, the Minister for Police approved the offer of a reward for information leading to the arrest, charging and conviction of persons associated with the death of Terrence Falconer. This was publicly announced.
Anthony Perish was arrested on 19 January 2009.
A media conference was held on 25 January 2009 to remind the public of rewards on offer for the matters being investigated by Strike Force Tuno-2.
Matthew Lawton was arrested on 27 January 2009 and Andrew Perish was arrested on 5 February 2009.
The appellants were found guilty by a jury on 13 September 2011.
An application for a claim on the Government reward offer in respect of Strike Force Tuno-2 was submitted by Detective Jubelin on 20 September 2011. It was approved in October 2011.
On 2 December 2012, an article appeared in a newspaper concerning the payment of government rewards generally. It referred specifically to some rewards that had been paid in a number of cases but it also purported to provide information about a reward paid to "a protected source who assisted investigators with the 2001 abduction and murder of … Terry Falconer". It stated that the reward was $200,000 and it was paid on 22 February 2012.
The solicitor for the respondent Perish sought information from the Office of the Director of Public Prosecutions but she was told it was a matter for police. She then sought information from Detective Jubelin who advised her: "I am not in a position, nor am I prepared to make any comment as to [the article's] accuracy".
An Order to Produce was issued at the request of the respondent Perish on 1 July 2014 and a notice of motion seeking to have it set aside, or excusing the applicant from compliance, was filed on 30 July 2014. An identical Order to Produce was issued at the request of the respondent Lawton on 4 February 2015 and the applicant amended the notice of motion to incorporate it as well.
On 29 August 2014 some documents were produced by the applicant to the respondents. I was told this was done without conceding that there was a legitimate forensic purpose but in the hope of resolving the matter. Unfortunately it did not. The applicant presses the claim of no legitimate forensic purpose.

Evidence

The applicant read open and confidential affidavits by Deputy Commissioner Naguib Kaldas; an affidavit of Ms Carolyn Davenport SC; a copy of a NSW Police Force Media Release dated 25 January 2009; statements of Detective Inspector Jubelin dated 27 April 2010; and page 1377 of the transcript of the respondents' trial. The respondent Perish read an affidavit of his solicitor and the respondent Lawton read an affidavit by his counsel at trial, Mr Stephen Hanley SC.
Written submissions on behalf of the applicant and Anthony Perish were provided.

Legitimate forensic purpose

Where objection is taken on this basis, it is incumbent upon the party seeking production and access to documents to identify a legitimate forensic purpose: Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 575; R v Saleam (1989) 16 NSWLR 14 at 17-18; Attorney General for New South Wales v Stuart (1994) 34 NSWLR 667 at 681.
The fact that the documents are, or may be, relevant is not enough: Carroll v Attorney-General for New South Wales (1993) 70 A Crim R 162 at 181-2; Attorney-General for New South Wales v Dylan Chidgey [2008] NSWCCA 65; 182 A Crim R 536 at [59]-[63].
Not only must a legitimate forensic purpose be established; the party seeking the documents must also establish that it is "on the cards" that they will materially assist its case: Regina v Saleam [1999] NSWCCA 86 at [11] (Simpson J).
Material that enables a party to test the evidence of a witness (in this case a witness or witnesses who may have been eligible and who intended to claim reward moneys) by comparing it with the documents to which access is sought may be a legitimate forensic purpose: Alister v The Queen [1984] HCA 85; 154 CLR 404 at 415 (Gibbs CJ).
The respondents contend that an inference is available from the terms of the newspaper article that a reward was paid by the Government to a person known as "Witness A" who gave evidence for the prosecution at their trial. Counsel for the applicant contends that it is speculation that any reward was paid to a witness. The NSW Police Media Release indicated that rewards were available in relation to information "leading to the conviction of those responsible" for the murders being investigated by Strike Force Tuno-2.
The following matters are relevant to the determination of this issue. The fact that a reward was offered by the Government was a matter of public record. It was announced in 2008 and re-announced in 2009. The affidavit of Ms Davenport SC makes plain that she was aware during the respondents' trial that a reward had been offered. She stated that there was nothing in a large volume of material described as "Investigators' Notes" (notes made of contact between police investigators and witnesses called by the Crown) about police speaking with Witness A about a reward, or that he had any intention of claiming such a reward. If she had known of any offer by police, or intention by Witness A to apply for a reward, she would have questioned him about it. Mr Hanley's affidavit is in similar terms. Page 1377 of the trial transcript makes plain that the question of whether a certain witness was promised any reward was raised. Detective Glen Browne gave the following evidence: "Q. Did [name of witness] ever ask for, or was he in any way promised any reward for the information that he provided police during his contact with you in association with this matter? A. No, never, and in fact a reward wasn't published for this investigation until quite some years later."
In the light of these matters, there is no explanation why witnesses were not cross-examined by the respondents' counsel as to whether they had asked for, or had been promised, a reward.
It should also be noted that the proposed ground of appeal asserts a failure to comply with the prosecution's duty of disclosure encapsulated in s 15A of the Director of Public Prosecutions Act 1986 (NSW) and s 137 of the Criminal Procedure Act 1987 (NSW). The fact that no disclosure of the type complained of should be a guide in itself to the fact that there was nothing to disclose of the type now speculated to exist.
The open affidavit of Deputy Commissioner Kaldas of 18 August 2014 includes: "33. The details in the article concerning the amount of payments for rewards in relation to the murder of Terrence Falconer are inaccurate. 34. At no stage were any of the witnesses or persons who provided evidence or gave assistance to NSW Police in relation to Strike Force Tuno or Strike Force Tuno-2 promised or guaranteed a reward by investigating police. Investigating police do not have the authority to promise any person the payment of a reward. An application for a claim on a reward will generally only be considered upon the arrest and conviction of an offender, and following consideration by REAC. Ultimately, the payment of a claim on a Government reward is at the sole discretion of the Commissioner of Police. 35. Inspector Jubelin is of the opinion that witness 'A', and the other witnesses in the appellant's trial, were aware that a Government reward had been approved in relation to the Falconer murder. Similarly, Inspector Jubelin is of the opinion that Witness 'A', and the other witnesses in the appellant's trial, were aware that they had a right to make a claim on that Government reward. 36. Neither Inspector Jubelin, nor any officer under his supervision gave any promise or guarantee to Witness 'A', of any of the other witnesses, prior to or whilst he or they were giving evidence in the appellant's trial, that he or they would receive a reward for doing so."
Senior counsel for the respondent Perish notes that the affidavit is silent as to the basis for Detective Jubelin's opinion that Witness A and other witnesses were aware that they had a right to make a claim for a reward and silent as to what Witness A was told about the prospect of receiving a reward, including whether any application by him would be supported by police. It was noted that the submission by Detective Jubelin recommending the payment of a reward was made very soon after the conclusion of the trial; it being inferred that he must have had this in mind at some earlier point in time.
It was submitted that any information as to Witness A's intention to claim, or prospects of receiving a reward, was material to his credibility. Even if it was thought that his evidence in the trial was consistent with prior statements he had made, it remained relevant to an assessment of the significance of him adhering to such prior statements.
It was also submitted that at least one other witness came forward and made a statement after the offer of a reward was publicly announced and so discussions between such a witness as to eligibility for a reward and the police attitude to any claim that might be made were "highly relevant to the credit of those witnesses".

Determination

Submissions by counsel for the applicant point out that claims advanced in support of the respondents having the documents made available to them are based upon assumptions and speculation. There is an assumption that the newspaper article is correct. Then, based on that assumption, there is speculation that a reward was paid to a witness; that Witness A had an intention to claim a reward; that a reward was paid to Witness A; and that police spoke to Witness A prior to evidence being given at the trial about the prospect of a reward.
The submissions for the respondent Perish adopted by the respondent Lawton are unpersuasive in seeking to discharge the onus that is upon them to establish a legitimate forensic purpose, let alone that it is "on the cards" that the material will assist their case.
The Order to Produce is a mere fishing expedition for material in the hope that there might be something found to give a foundation to a ground of appeal that raises an issue that was open to have been raised at the trial even in the absence of such material. In these circumstances, the Orders to Produce issued at the request of the respondents represent an abuse of process.

Public interest immunity

I will deal very briefly with the public interest immunity claim, notwithstanding it is not the basis of my determination of the matter.
The authorities concerning a claim of public interest immunity are thoroughly canvassed in the written submissions for the applicant and there is no need for me to repeat them. They include reference to "a balancing exercise": balancing the need to protect the public interest against potential frustration of the administration of justice. The public interest in this case relates to prejudice that may be caused in respect of the prevention, investigation and prosecution of crime.
Matters that are required by s 130(5) of the Evidence Act 1995 (NSW) to be considered are the importance of the information or documents and the fact that the parties seeking the material are persons appealing against their convictions for criminal offences of extreme seriousness.

Determination

This matter does not arrive at the stage of carrying out any balancing exercise. I have inspected the documents that are annexed to the confidential affidavits of Deputy Commissioner Kaldas. I am satisfied that there is a very high need for the material to remain confidential for the reasons provided in those affidavits. And I can see nothing in the material to indicate that withholding it will serve to frustrate any attempt by the respondents to establish that their trials were tainted by a miscarriage of justice.

Order

I make the following order: The Orders to Produce issued to the NSW Police Service on 1 July 2014 and 4 February 2015 are set aside.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 May 2015

Criminal Procedure Act 1987(NSW)

Evidence Act 1995(NSW)s 130(5)

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