Perish v R; Lawton v R

Court of Criminal Appeal (NSW)|2015-07-30|Before: Hoeben CJ, Price J, Fagan J, Hulme J

Judgment

THE COURT: By two Notices of Motion Anthony Perish and Matthew Lawton seek to uphold and enforce orders for production of documents issued by the Registrar at their request, addressed to the New South Wales Police. The documents are sought in connection with the Appellants' respective appeals to this Court against convictions for murder and conspiracy to murder.
On 14 September 2011 Anthony Perish and Matthew Lawton ("the Appellants") were found guilty of the murder of Terrence Falconer after a trial by jury over 36 days. Andrew Perish was tried with them for conspiracy to murder, on which charge verdicts of guilty were returned against all three accused. On 13 April 2012 the Appellants and Andrew Perish were convicted and sentenced to lengthy terms of imprisonment: R v Perish [2012] NSWSC 355. They are currently serving those sentences.
The conviction appeals of both Appellants are listed to be heard by this Court in September 2015. The orders for production which they have caused the Registrar to issue to the Proper Officer of the NSW Police are both in the same terms, as follows: "All documents, notes, or other material relating to the payment of a reward for information in the investigation into the death of Terrence Falconer."
On the application of the Commissioner of Police, RA Hulme J set aside these orders to produce on 29 May 2015: Perish v R; Lawton v R [2015] NSWCCA 129. Thereafter, the Appellants filed the Notices of Motion which are now before the Court, seeking that his Honour's order be itself set aside and that the full Court of Criminal Appeal determine whether or not the production orders should stand and be complied with.

Investigation and evidence of the murder

As at 16 November 2001 Falconer was an inmate of Silverwater Correctional Complex. He had been working for some months in a motor vehicle repair business at Ingleburn, under a day release program. Late on 16 November 2001 witnesses informed police that earlier that day three persons posing as police officers had attended the repair yard, handcuffed Falconer and driven him away in a motor vehicle. Human remains found in the Hastings River at Wauchope on 26 November 2001 were subsequently determined to be the remains of Falconer.
In early December 2001 police established Strikeforce TUNO to investigate Falconer's abduction and murder. In late August 2002 they commenced to receive information from Witness A. A detailed statement of this witness was prepared in May 2003 and signed on 15 July 2003. A second statement was signed in November 2003 and a third statement in September 2007.
Anthony Perish was arrested for the murder of Falconer on 19 January 2009 together with another man referred to at the trial as Witness E. The latter admitted his own role in the abduction and murder during a record of interview.
On 25 January 2009 the NSW Government publicly announced the offer of a reward for information leading to the arrest, charging and conviction of persons associated with the death of Terrence Falconer. The announcement was by way of a media release by the then Minister for Police and by Detective Inspector Jubelin, the officer in charge of the investigation. A reward of $200,000 was offered. In the same media release, offers of rewards for information leading to the conviction of persons involved in other murders and an attempted murder were announced. By this time Police Strikeforce TUNO 2 had been established, with expanded objectives of investigating murders additional to that of Terrence Falconer.
Matthew Lawton and Andrew Perish were arrested on 27 January 2009 and 5 February 2009, respectively. Both were charged in relation to the death of Terrence Falconer.
A trial of the Perish brothers and Matthew Lawton commenced in July 2011 but was aborted on 25 July 2011. A new trial, which continued to verdict, commenced on 27 July 2011. Evidence given by Witness A for the Crown was to the effect that in early October 2001 Anthony Perish told him that he, Perish, planned to kill Falconer and to dismember his body. Witness A was asked by Anthony Perish to bring his trailerable outboard motor boat to a river about 200 kilometres north of Sydney, on a date to be fixed, to motor it up the river to Bulahdelah and there to meet Anthony Perish. Perish would have with him "a couple of eskies" containing Falconer's dismembered body.
Witness A and Anthony Perish agreed in late October or early November 2001 that Bulahdelah was not a suitable rendezvous because of speed restrictions applicable to vessels on that part of the river. In early November 2001 Anthony Perish instructed Witness A to take the eskies, from wherever they were ultimately to be collected, out to sea, to the edge of the continental shelf, and there to empty the contents in deep water. Anthony Perish directed Witness A that the eskies themselves should be washed out and discarded on the way back to the coast and that the boat should then be washed out with ammonia.
According to Witness A, Andrew Perish was also present at some of these discussions. Andrew Perish provided Witness A with funds for the carrying out of mechanical repairs to the boat to put it in working order for the planned purpose. Matthew Lawton provided Witness A with a dedicated mobile phone for use in connection with arranging the disposal of Falconer's body.
On the evidence of Witness A, Matthew Lawton drove Anthony Perish to the property where Witness A resided on at least three occasions in about late October to early November 2001, at which time Witness A and Anthony Perish discussed the plan for disposing of Falconer's body. On one of these occasions Anthony Perish produced to Witness A a document which purported to show that Falconer was prepared to give evidence against members of the Rebels Motorcycle Club at Dubbo, regarding their alleged drug dealings. Andrew Perish was a former member of the Rebels Motorcycle Club. Witness A's evidence regarding this exchange established at least one motive of Anthony Perish for the murder.
Witness A gave evidence that from about 12 November 2001 he decided not to participate in the planned disposal of Terrence Falconer's body parts. He had come to fear for his own safety. He said that he in fact took no further part in the plan beyond that date.
Evidence of other witnesses established that, before proposing to Witness A that he should assist with the disposal of the body, Anthony Perish had arranged with Witness E that the latter should obtain a van and a large lockbox, in which Falconer could be secured after he had been abducted from the premises where he worked under his day release program. Witness E recruited two others to assist in the abduction. On the afternoon of 16 November 2001 Witness E parked a white van at a location not far from Falconer's place of work. He met the other two recruits there.
One of the recruits dressed as a police officer. All three proceeded, in a Commodore motor car which had been made to look like an unmarked police vehicle, to the repair yard. Police identification badges were presented to employees of the business who then accompanied Witness E and one of his recruits to the part of the yard where Falconer was working. Falconer was handcuffed, returned to the car and removed from the premises. Witness E applied a chloroform soaked rag to Falconer's mouth and rendered him unconscious whilst the Commodore was being driven to the place where the white van was parked. Falconer was then placed in the lockbox within the van.
Witness E gave evidence that he transported Falconer, secure in the lockbox, by means of the white van to Turramurra. There he met Anthony Perish and Matthew Lawton who transferred the lockbox onto the tray of a utility. By that vehicle it was transported to Girvan, 220 kilometres north of Sydney, with Lawton driving and Witness E as passenger. Anthony Perish disposed of the white van and arrived at Girvan sometime later.
There was conflicting evidence as to whether Falconer was dead on arrival at Turramurra. The Crown led evidence that he was certainly dead by the time the utility reached Girvan. The Crown case was left to the jury in such a manner that their verdict did not determine whether Falconer was still alive when Witness E arrived in the white van at Turramurra. For the purpose of sentencing the trial judge was not satisfied beyond reasonable doubt that he was alive at that stage: R v Perish [2012] NSWSC 355 at 59.
On a property at Girvan, Falconer's body was dismembered by Anthony Perish, Matthew Lawton and Witness E. The body parts were placed in plastic bags that were sealed up and dropped in the Hastings River. Six of the bags were found in the river on 26 November 2001 and the seventh was located on 13 September 2002.
Witness E was called by the Crown at the trial of the Perish brothers and Matthew Lawton. He contradicted what he had previously told police (which had been to the effect of [18]-[22] above) and purported not to remember the events which constituted the offences. Leave was given for the Crown to cross examine him and his record of interview was adduced in evidence.
The evidence of Witness A was clearly important to the Crown case against each of the three accused. Although he had not been a participant in or a witness to the abduction, murder and disposal of human remains, his evidence that Anthony Perish discussed with him Perish's intention to do these things would have been very significant to the jury. Witness A's truthfulness and credibility were attacked by defence counsel in cross-examination.

Police dealings with Witness A

Before the trial the accused had been provided with a statement of Inspector Jubelin made 27 April 2010 which recounted in detail the course of his contacts with Witness A during the investigation, from the first contact on 29 August 2002. Over 130 contacts were particularised in this statement, with a summary of the date, medium and subject matter of each and with reference to electronic records of what had passed between police and the witness on each occasion. These contacts occurred mostly in the fifteen months up to November 2003, at which time Witness A signed his second statement. Thereafter there were some contacts in late September 2007 when a third statement was signed and again in March 2008 when a memorandum of understanding with the witness was signed. The next contact after this was in mid March 2009 when a further memorandum of understanding was signed.
Inspector Jubelin's statement included a number of references to occasions when Witness A spoke to police of his concerns about welfare and physical security. There were also references to his relocation and to the provision of money to pay for the relocation and for other expenses. The final paragraph of the statement recorded that the provision of finance to Witness A had been approved by the State Crime Command of NSW Police and by the NSW Crime Commission. It was quite apparent to the Appellants and their legal representatives at the trial that Witness A considered himself at risk of retribution from associates of the three accused and that the police were reasonably required to provide him with protection and assistance in relation to concealment and relocation.

Conduct of the trial

In an affidavit sworn 27 August 2014 and relied upon on the hearing of the Notices of Motion, trial counsel for Anthony Perish has deposed: "3. During the course of the trial I became aware that a reward had been offered. 4. Before the trial commenced the Crown had produced a large volume of material described as 'investigators notes' which contained notes made of contact between police investigators and witnesses called by the Crown. 5. There was no indication in those notes that the police had spoken to the person known as Witness A about a reward or that he had any intention of claiming such a reward. 6. The evidence relied upon from this witness had been elicited by the investigators in 2002 and thereafter, long before the reward was offered."
In an affidavit sworn 19 June 2015 and similarly relied upon in the present application, trial counsel for Matthew Lawton deposed as follows: "2. Some time after my being briefed to appear at the trial, my instructing solicitor, Mr Elias Matouk, provided me with a folder of material relating to Witness A. I understand that this material was served upon him by way of disclosure before the committal hearing in the Local Court. This material comprised a series of investigator notes relating to communications between Witness A and the police. … 4. During the course of the trial I became aware of the fact that a reward had been offered. There was no suggestion in the folder referred to in paragraph 2 or indeed in any other material provided to me during the course of the Appellant's trial which suggested that Witness A had been offered a reward, or that he was entitled to make a claim on a reward, or that he was going to claim a reward upon the conviction of the Appellant."
On the hearing of the present application the Appellants tendered page 521 of the transcript of 19 July 2011 from the first trial which was later aborted. This seems to have been from a stage in that first trial when Witness A was giving evidence and before Witness E had been called. It appears from the transcript that Mr Grady then appeared in the interests of the Commissioner of Police to claim public interest immunity in respect of the answers to some questions which might have been asked of the witness. The passage now relied upon by the Appellants is as follows: "CROWN PROSECUTOR: Your Honour, there is one issue which I think may involve me. It involves Mr Grady but would be obvious given the way I've led the current witnesses (sic) that, to use the vernacular, no deal was done with him, there was no undertaking signed, no reward given, no benefits offered. Now, his circumstances are that as with all witnesses, but with this one, the public has borne some expense in respect to him. Now if there's any cross-examination along the lines that he has received some benefit by his sustenance or other day-to-day expenses whatever they were I'd be concerned about that, because there are particular reasons why this witness has received sustenance and such things which really are obvious given his status. So I just make that plain, because I think my friend here is going to have something to say on behalf of the Commissioner about it but I too, but that would be my position, respectfully. These, the Crown is obliged to lead any evidence of undertakings, benefits, offers, letters of comfort, pulling of charges, that type of thing as going to the credit of a witness and the Crown is required to do that in chief and so Sullivan's case says, that the type of thing that I'm referring to is an entirely different category. It doesn't fall within that type of evidence, but I'm just not asking your Honour to do anything at this stage, but I am just putting that on the record. HIS HONOUR: Have there been discussions with counsel concerning that, for the accused? GRADY: Yes, your Honour, I raised the matter yesterday with Mr Terracini [appearing for Andrew Perish] and I'll obviously stand corrected, I believe that there is an intention to ask the current witness concerning amounts he has received by way of sustenance. I believe that relocation and such matters aren't going to be raised, but the whole legal reason for the sustenance is because of the relocation, uprooting and the like, your Honour, and the Commissioner would raise an objection to anything apart from the fact that the witness has received expenses for relocation and expenses for sustenance. If it comes down to actual payments or amounts received and the like there is some confidential information before your Honour in a claim that was earlier raised…"
The reference to "Sullivan's case" is no doubt to Sullivan v R [2003] NSWCCA 100, in which a majority of this Court considered that the Crown had not fulfilled its duty "to lead in evidence all material of that kind which is relevant in order that the jury is fully informed of those matters which would enable it to make a proper assessment of the witness' credibility" (per Buddin J at [95]). The principal Crown witness in that case had received the benefit of a 50% discount on his sentence in consideration for giving evidence against the accused. He was exposed to the risk of being resentenced and his term of imprisonment increased if he failed to give evidence as agreed. The jury were not informed of the extent of his discount, which amounted to a reduction from 15 years imprisonment to 7½ years; nor was it explained to them what was meant by his exposure to being "resentenced".
In the trial of the Appellants which commenced on 27 July 2011 and which is the subject of the appeal pending in this Court, neither of the Appellants' counsel cross examined Witness A about whether or not police had promised him that he would receive a reward or told him that they would support an application by him for a reward. Witness A was not cross examined as to whether he intended to apply for a reward or whether he expected to receive one. He was not asked by defence counsel anything about a reward. Counsel for Andrew Perish did not cross examine on these topics either. This was despite both of the Appellants' trial counsel knowing of the Government's reward offer and it being obvious that if convictions should ensue Witness A's evidence would almost certainly be viewed as having led to or contributed to that outcome. Witness A would clearly have a basis for being favourably considered if he should choose to claim the reward. There was no evidence before the Court on this application as to whether Witness A was cross examined at committal on the subject of a reward.
Detective Sergeant Browne was responsible for the control and direction of the investigation into Falconer's abduction and death, together with Inspector Jubelin, from early December 2001. He gave evidence in the trial after Witness A. On 23 August 2011 he answered a question in chief as follows: "Q. Did [Witness A] 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."
By "quite some years later" he clearly meant later than the period during which Witness A provided important information to police and in which he prepared and signed his principal statement and assisted police in gathering additional evidence. That was up to about November 2003.
The Appellants rely upon the following passages from the final address of the Crown Prosecutor. First, at T 1518 the Crown addressed as follows: "CROWN PROSECUTOR: … with respect to Witness A, Witness A was spoken to by Detect Cown (sic - should read Detective Browne) in the early part of 2002. 27 February 2002 police spoke to him briefly in relation to the investigation into the death of the Perishes [grandparents of Anthony and Andrew Perish], and he refused to give police a statement in relation to that matter. So there you are, in February 2002 he's not seeking any benefit from the police, or seeking to curry favour with the police, or seeking to obtain some protection from the police in association with things he had previously done. There is nothing. Nothing. He doesn't approach them, they want to speak to him about something else, he didn't speak to them about this matter at all. It was only when the police turn up on his doorstep on 29 August 2002 that he thought, right, these people need to be told in respect of the Falconer matter they got the wrong man, and that is when things began to role (sic) …"
At T 1519 the Crown's address continued in these terms: "CROWN PROSECUTOR: What may be put to you … is that there may be inconsistencies in his [Witness A's] account during the early period before he gave his statement. You should weigh that submission carefully into the equation and bear in mind Witness A has told you his apprehension at cooperating with police - his apprehension, with the notion of cooperating with police. That concept, that fact, sits at odds with the idea that he was a man seeking to obtain some kind of benefit as a result of anything that happened in the early years, or, in any event, in any way whatsoever. You heard his evidence that he has received no benefits and you may think, in fact, his life has been turned upside down by what he has done in this case."
At T 1530 the following was said: "CROWN PROSECUTOR: Now he [Witness A] participated in this exercise of obtaining very important evidence and then returned to live his life, to be summonsed some years later into these proceedings after charges were laid in 2009, Anthony Perish arrested in the company of Witness E at their favourite cafe and Lawton arrested not long after. No reward, no benefit, no money, no discount, no deal, nothing."
From these statements made by the Crown, by Mr Grady and by Detective Sergeant Browne the Appellants say that they were given to understand that Witness A testified without any promise of receiving a reward for doing so. The jury were given the same understanding from such statements as were made in their presence (see [33] to [37] above). In contradiction of these statements both Appellants seek to prove on the appeal that to the knowledge of police and with promises and encouragement from them, the witness expected a reward. It is said that these matters, if now established, should have been disclosed by the Crown. If that had occurred the defence would have put the matters before the jury, significantly altering the impression conveyed by the passages quoted at [33] to [37].

Events leading to the issue of the notices to produce

On 2 December 2012 an article was published in the Sunday Telegraph, authored by Yoni Bashan under the headline "$770,000 that's what it cost to solve State's toughest crimes". This article included the following assertions: "The biggest reward handed out to an informant so far this year was $200,000. The money was given to a protected source who assisted investigators with the 2001 abduction and murder of drug dealer Terry Falconer. In that case, known as strike force Tuno, the supergrass had to wait almost 10 years to receive the money. He provided the information in August 2002 and only received the money this year after the three men accused of Falconer's murder were convicted."
A further passage, to much the same effect, was as follows: "SOLVED MURDER OF TERRY FALCONER (2001) Reward $200,000 Offered January 25, 2009 Information received August 2002 Amount paid $200,000 on February 22, 2012 The murder of police informant Terry Falconer was at the centre of one of NSW's longest-running investigations. Three people were convicted over his murder."
Anthony Perish's solicitor wrote to Inspector Jubelin concerning this newspaper article nearly fifteen months later, on 14 February 2014. Inspector Jubelin responded by email of 24 February 2014 as follows: "I had no dealings with the author in relation to this article. I am not in a position, nor am I prepared to make any comment as to its accuracy. NSW Police do not release information to the media or public concerning the payment of government rewards. This is based on policy and 'public interest immunity' issues."
In submissions counsel for Matthew Lawton sought to have the Court infer from the newspaper article that: 1. there must in fact have been paid out the whole of the offered sum of $200,000 by way of reward; 2. the recipient must have been Witness A, having regard to his importance to the Crown case; 3. there must be documents relating to the reward payment and 4. these would show that the payment was made to Witness A.
The article is hearsay and has not been attributed by its author to any source or to any basis of information and belief. It is therefore not a foundation for any inference. The article has ceased to be of significance for determining the threshold question referred to in item (c) above, whether there may be documents which would answer the description in the orders to produce. Direct evidence of the existence of such documents has been provided on behalf of the Commissioner, to the extent described in the following paragraph. The direct evidence also obviates the inference referred to in (a) above. The Commissioner has acknowledged that an application for reward was approved although the evidence does not disclose how much was paid. The Commissioner's evidence does not identify who received a reward (items (b) and (d) above) because public interest immunity is claimed in respect of that information.

Evidence tendered by the Commissioner

The Commissioner of Police, seeking that the orders to produce documents should remain set aside, relied upon two affidavits of Deputy Commissioner N. Kaldas. Mr Kaldas deposed that the officer in charge of an investigation into a serious offence may apply to the Reward Evaluation Advisory Committee ("REAC") for a Government reward to be offered. The application must be accompanied by a detailed report outlining the investigation and the reasons why a reward offer is sought. It must be signed by the Commander of the relevant State Crime Command Squad. REAC is constituted by an Assistant Commissioner, two senior executive officers and two other sworn members of the NSW Police Force of or above the rank of Inspector. If the application is supported by REAC then a report is submitted to the Minister for Police for approval.
Mr Kaldas' evidence is that this procedure was applicable in 2008 and 2009 and was followed in this case. Detective Jubelin submitted a report to REAC on 7 February 2008, requesting the offer of a Government reward in relation to the investigation into the abduction and murder of Falconer. REAC supported the application. A report was submitted to the Minister and on 27 February 2008 the Minister approved the offer of a Government reward. However the offer was not announced until 25 January 2009, as mentioned in [12], after the arrest of Anthony Perish and Witness E.
Mr Kaldas further deposed that an application for a claim on this reward was submitted by Inspector Jubelin to REAC on 20 September 2011 and approved in October 2011. He gave the following evidence with respect to the article published in the Sunday Telegraph on 2 December 2012: "32. The contents of that article were not discussed with Inspector Jubelin, as Officer-in-Charge, prior to publication. Assistant Commissioner Peter Barrie is quoted in that article, however, the comments he provided were specifically in relation to processes and policy, and did not concern the payment of rewards and/or amounts. 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-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', or 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."

Appeal Grounds

It is necessary to identify the appeal grounds to which the Appellants say the orders to produce are relevant. Consideration must be given to what facts the Appellants may legitimately seek to prove in support of those grounds. No view on the prospects of success of these grounds is intended to be expressed by what follows.
In an Amended Notice of Grounds of Appeal filed on behalf of Anthony Perish on 13 July 2015, the grounds identified by counsel as relevant to consideration of the present application appear as follows: "4. A miscarriage of justice was occasioned as a result of the failure to disclose to the Appellant information relevant to the eligibility and intention of a prosecution witness or witnesses to claim reward monies from the State in the event that the Appellant was convicted, in breach of s 15A of the Director of Public Prosecutions Act 1986 (NSW) or s 137 of the Criminal Procedure Act 1987 (NSW) or both. 4A. A miscarriage of justice was occasioned due to the absence at trial of evidence which has since become available."
Supplementary submissions in the substantive appeal, filed on behalf of Anthony Perish on 13 July 2015, show that Ground 4A is concerned with evidence of the application by Inspector Jubelin on 20 September 2011 for a claim on the reward in respect of the Falconer investigation. This is said to be fresh evidence.
Anthony Perish sought to illustrate how the documents sought under the orders to produce may assist his case on Ground 4A, concerning fresh evidence, by reference to Da Silva v R [2012] NSWCCA 129. In that case the circumstances which warranted an order for retrial were not just the fact of a reward having been given but the existence of evidence from a solicitor in the DPP's office that the relevant witness (the accused's brother) had said after the trial: "The only reason for doing it (giving evidence) was because I was offered a reward".
In the Da Silva appeal police denied that they had "offered" or promised a reward to the witness before he gave evidence but said that they had discussed with him prior to the trial the possibility of a monetary reward being applied for and granted. The fresh evidence which sustained that appeal was not merely evidence that the witness had known of the possibility of applying for a reward or that police had informed him of this. It was evidence of his post-trial declaration that he "only" gave evidence because he was "offered a reward": [22], [39], [40].
On behalf of Matthew Lawton, Amended Grounds of Appeal were filed on 2 October 2014 in which the only ground presently relevant is as follows: "6. A miscarriage of justice was occasioned as a result of the failure to disclose to the Appellant information relevant to the eligibility, and intention, of Witness A to claim reward monies, in the event that the Appellant and/or his co-Appellant were to be convicted."
Anthony Perish's Ground 4 and Matthew Lawton's Ground 6 are non-disclosure grounds. The Crown could only have been obliged to disclose matters known to it, including through police, at or before the trial. The facts, alone, that following the verdicts a claim for reward was lodged on behalf of one or more witnesses and that the claim was accepted would not appear capable of sustaining the non-disclosure grounds.
In connection with these grounds it would seem necessary for the Appellants to show that at or before the trial police knew, in relation to a witness who in fact subsequently received a reward, that (a) the witness intended and expected to receive the reward and/or (b) police had promised a reward to that witness and/or (c) police had promised to support that witness' application for a reward. Proof that the police knew one or more of these matters in relation to an identified witness whose evidence was significant at the trial would appear to be a minimal requirement for the non-disclosure grounds to be arguable.
Anthony Perish's Ground 4A, particularised as explained in [49] above, is based solely upon the post-trial events of application for reward and payment, as matters of fresh evidence. Ground 4A purports to be founded upon fresh evidence of an application for and payment of a reward and upon inference therefrom of the witness' expectation at the time of trial. The ground purports not to rely upon any allegation that the police had knowledge of the witness' expectation or that they contributed to it by promises. Any contention on appeal that police knew of a significant witness' expectation of reward would correctly be directed to a non-disclosure ground, not a fresh evidence ground: Grey v R [2001] HCA 65.

Legal principle

It was accepted by counsel for both Appellants that in circumstances where the Commissioner has objected to compliance with the orders for production the Appellants must show not merely that documents caught by the orders are or might be relevant; they must identify a legitimate forensic purpose in obtaining them: R v Saleam (1989) 16 NSWLR 14 at 17-18; R v Saleam [1999] NSWCCA 86 at 11; Attorney General for NSW v Stuart (1994) 34 NSWLR 667 at 681; Attorney General for NSW v Chidgey [2008] NSWCCA 65 at [58]-[64]. The concept of demonstrating a legitimate forensic purpose has been expressed in contradistinction to seeking documents merely "to discover whether he has a case at all" (Commissioner for Railways v Small (1938) 38 SR NSW 564 at 575). In a similar vein Mahoney AP in Carroll v Attorney General for NSW (1993) 70 A Crim R 162 at 181-182 said: "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. …. 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. …. 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."
The Appellants also accepted that they must establish that it is "on the cards" that the documents they seek will materially assist their case: R v Saleam [1999] NSWCCA 86 at 11; Attorney-General for New South Wales v Chidgey [2008] NSWCCA 65 at [58]-[80].

Submissions for Appellant Anthony Perish

Counsel for Anthony Perish asserted that an inference could be drawn, at least from Mr Kaldas' evidence that an application for a reward was approved in October 2011, that Witness A must have been paid that reward. From this counsel submitted a further inference was available as follows: "19 An inference is therefore available that Witness A knew about the possibility of claiming a reward at the time he gave his evidence. It is also an available inference that Witness A was motivated, at least in part, on the basis of a belief that he could become eligible to receive a reward were he to give evidence that led to a conviction. 20 These inferences are strengthened by the evidence given at trial regarding the past conduct of Witness A. … there was evidence in the trial that Witness A had previously been motivated to speak to the police on the basis that he could claim some reward money in relation to another matter. There was also evidence that he also attempted to provide evidence to the Crime Commission in an attempt to gain protection and other benefits."
These putative inferential conclusions are directed solely to Witness A's subjective state of mind when he gave evidence and not to anything known by or said by police. They are therefore concerned with Anthony Perish's Ground 4A concerning fresh evidence, not with Ground 4 concerning Crown non-disclosure.
The inference referred to in par 19 of the Appellant's submissions quoted at [58] above, that Witness A knew of the possibility of claiming a reward when he gave his evidence, flows independently of anything in Mr Kaldas' affidavit. It flows from the fact that the reward was publicly offered on 25 January 2009 and that Witness A would likely have learned that the reward was offered, either by being told of it by police or through the media. The offer and hence the strong probability that Witness A would have known of it were within defence counsel's knowledge at the time of the trial: see [28] and [29]. The further inference suggested in par 19 that Witness A was motivated in giving his evidence by the prospect of receiving the reward was not put to the witness at trial.
Mr Kaldas has acknowledged that a reward was applied for and approved. It is apparent that post-trial documents relating to the reward application and payment exist. From these facts, coupled with the significance of Witness A to the Crown case and the circumstances and extent of his assistance to police in their investigation, the Appellants submit that it is "on the cards" that documents produced under the disputed production orders would show that Witness A received a reward. But to show that the documents could have any utility for his appeal the Appellant Perish must go further. He must show that it is "on the cards" that such documents would reveal something about Witness A's expectation regarding the reward at the date of the trial and/or about police knowledge of that expectation.
Anthony Perish's counsel suggested that the orders to produce might bring forth documents disclosing directly or by inference: "(a) any awareness by Witness A or any other Crown witness as to the existence of the reward before the conclusion of their evidence at trial; (b) any discussions with Witness A or any other Crown witness as to the existence of the reward before the conclusion of their evidence at the trial; (c) any correspondence with Witness A or any other Crown witness as to the existence of the reward before the conclusion of their evidence at trial; (d) any promise, assurance, undertaking or agreement relating to the payment of the reward given to Witness A or any other Crown witness before the conclusion of their evidence at trial; (e) any discussion regarding supporting payment of the reward to Witness A or any other Crown witness before the conclusion of their evidence at trial."
As to (a) there does not appear to us any real chance that the documents in connection with Inspector Jubelin's application for reward on behalf of any witness in the case or relating to the payment of any reward would add anything to the proof, already available by inference from the material known to the defence at trial, that Witness A was aware of the possibility of claiming a reward at the time of giving his evidence.
With respect to each of (b) to (e), it was submitted that it might have been significant for REAC in determining whether or not to pay a reward to take into account anything that a witness "was told about the prospect of receiving a reward, including whether any application by him would be supported by police". This proposition is purely speculative. It finds no support in the unchallenged affidavit evidence of Mr Kaldas. It is not a basis upon which we would find it to be "on the cards" that any documents in connection with the post-trial claim on the reward would likely produce documents useful to the Appellant as revealing matters of the kind set out in paragraph [62].
There is there inherently no reason to expect that documents in connection with the claim on the reward would refer to any pre-verdict communication between police and the witness holding out that a reward might be given. Further, Mr Kaldas has deposed without challenge that no promise or guarantee of reward was given by investigating police to any witness (see [46]). He has deposed that police do not have authority to make such promises and that rewards are in the sole discretion of the Commissioner, exercised only after conviction and following consideration by REAC. This is further supported by Detective Sergeant Browne's denial that Witness A made any request for a reward or that he was "in any way promised any reward" which was not challenged in cross examination at the trial.

Submissions for Appellant Lawton

Matthew Lawton relies upon the primary facts established by Mr Kaldas' affidavit, namely that a claim on the reward was submitted by Inspector Jubelin one week after the jury's verdict and that that application was approved by REAC in October 2011. From this he submits that it may be inferred: 1. that the approval was given effect to, by the payment of a reward and 2. that "it is highly probable that there are in existence documents which demonstrate that there was a payment of a reward in relation to the offences of which the Appellant was convicted".
It is further argued for Matthew Lawton that, as the reward was offered for "information leading to a conviction of those" responsible for the murder of Falconer, the only persons who would qualify would be Witness E (who would not likely receive the reward given that he became an unfavourable witness for the Crown at the trial) and Witness A. On this application the Court has not been given sufficient evidence about the entirety of the police investigation or about the evidence given by other witnesses to be able to say whether the field of possible reward recipients is or was as narrow as the Appellant Lawton contends.
However, assuming for the purposes of the application that it may be inferred from the primary facts deposed to by Mr Kaldas and from the course of the investigation and trial that there are likely to exist documents which would demonstrate the payment of some reward to Witness A in respect of his evidence leading to the conviction of the Appellants, what forensic purpose could the Appellant Lawton have in gaining access to such documents? The ground to which it is sought to relate the order for production is Ground 6 quoted at [52], concerned with the Crown's duty of disclosure.
As with the case put for Anthony Perish, the forensic purpose propounded by the Appellant Lawton is that he wishes to try to obtain documents which might record or prove that Witness A intended, at the time of giving evidence in the trial, to claim on the reward and that police officers (or other agents of the Crown) knew of this and/or encouraged in Witness A an expectation of reward.
In accordance with the accepted tests the Appellant must then show that it is "on the cards" that there will be such documents, revealing such intent of the witness and such knowledge of the police. For reasons already given in relation to the similar argument for Anthony Perish, in our view that is not "on the cards" at all but is quite fanciful.
Matthew Lawton's counsel has submitted that "it is only of minimal significance whether or not police, in fact, spoke to Witness A about the availability of the reward prior to trial … Naturally, a person who is aware of the availability of a reward may seek to curry favour with authorities by continuing to assist police, regardless of whether he has become aware of its existence from police directly or indirectly through a press conference …". Given that Matthew Lawton's only appeal ground relevant to the reward is Ground 6 concerning failure of the Crown to make disclosure, it is difficult to see how this can be advanced solely upon the basis of asserted facts about Witness A's intentions and motivations and without proof of what the police may have known of them. There is no real chance that such proof would come from the documents sought under the disputed orders.
In the submissions of both Appellants on this application some emphasis was placed upon par 35 of Mr Kaldas' affidavit where he deposed that Inspector Jubelin believes Witness A and other witnesses were aware of the reward offer and of their entitlements to claim on it. However it is not apparent in what way this opinion of the Inspector would presently assist the Appellants. It is an opinion that anyone who knew of the offer of reward (which includes defence counsel at the trial, according to their own affidavits) would have formed. The fact that Inspector Jubelin holds this opinion about the awareness of witnesses at the time of the trial does nothing to overcome the improbability that any documents connected with the post-trial application for reward would refer to or prove (a) any witness' knowledge of the reward at an earlier and relevant time or (b) any knowledge on the part of police, prior to or at the trial, regarding any witness' intentions concerning the reward.

Public interest immunity

Notwithstanding the improbability that documents brought into existence in connection with the application for the reward in September 2011 would refer to an intention or expectation of any witness at the time of the trial, or would refer to pre-verdict communications between police and any witness concerning the reward, the members of the Court hearing this application have examined the documents which would answer the orders to produce. These documents are identified and the grounds upon which public interest immunity is claimed in respect of them are explained in confidential affidavits of Mr Kaldas sworn 18 August 2014, 1 September 2014 and 29 July 2015.
The test which must be applied to resolve the public interest immunity claim is as stated by Gibbs CJ in Alister v The Queen [1984] HCA 85; (1984) 154 CLR 404 at 412: "[W]hen one party to litigation seeks the production of documents, and objection is taken that it would be against the public interest to produce them, the court is required to consider two conflicting aspects of the public interest, namely whether harm would be done by the production of the documents, and whether the administration of justice would be frustrated or impaired if the documents were withheld, and to decide which of those aspects predominates. The final step in this process - the balancing exercise - can only be undertaken when it appears that both aspects of the public interest do require consideration - ie, when it appears, on the one hand, that damage would be done to the public interest by producing the documents sought or documents of that class, and, on the other hand, that there are or are likely to be documents which contain material evidence. The Court can then consider the nature of the injury which the nation or the public service would be likely to suffer, and the evidentiary value and importance of the documents in the particular litigation."
Here, on examining the documents, we have formed the view that none of them would be of the slightest utility to either of the Appellants in furtherance of the grounds and arguments which they wish to raise on appeal as explained to the Court in submissions on this application. None of those documents would be of any assistance to either Appellant even indirectly, as indicating or validating some further course of enquiry or of gathering evidence relevant to the appeal.
On the other hand, Mr Kaldas' confidential affidavits have convinced us of the significant harm which would be done to effective policing generally in this State and to the capacity of the New South Wales Police Force to protect witnesses if these documents should be required to be produced under the Registrar's orders and made available for inspection by the Appellants' counsel. The balance referred to in Gibbs CJ's judgment is overwhelmingly in favour of upholding the claim to public interest immunity.

Orders

For these reasons, the Notices of Motion of each of the Appellants, Anthony Perish and Matthew Lawton should be dismissed. The effect of such dismissal will be that the order of RA Hulme J made 29 May 2015 setting aside the Registrar's orders to produce (respectively dated 1 July 2014 in the case of Anthony Perish and 4 February 2015 in the case of Matthew Lawton) will stand.
The orders of the Court are: 1. The Notice of Motion filed on behalf of the Appellant, Anthony Perish on 16 June 2015 is dismissed. 2. The Notice of Motion filed 25 June 2015 on behalf of Matthew Lawton is dismissed.
PRICE J: At the commencement of the hearing, Mr Dhanji SC, who appears for Anthony Perish, made an application that I recuse myself from hearing the notices of motion. The application was founded on the principle of apprehension of bias as I had presided at the appellants' trials and the proceedings were said to be "part of the appeal process" (T 1 L30-49, 30/7/15). The application was refused, by Hoeben CJ at CL, the presiding Judge, on my behalf and now I provide reasons for the rejection of the application.
The test of apprehension of bias is whether a fair-minded lay observer might reasonably apprehend that a judicial officer might not bring an impartial and unprejudiced mind in determining the issues for decision: Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 at [31], Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [11], In the matter of Cheal Industries Pty Ltd - Fitzpatrick v Cheal [2012] NSWSC 812 at [23]. It is an objective test, not a subjective one (Michael Wilson [33], [67]).
The application of this test requires two-steps: 1. Identifying what it is said that might lead the judge to decide a case or legal question other than on its legal and factual merits (Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [8], In the matter of Cheal Industries Pty Ltd - Fitzpatrick v Cheal [2012] NSWSC 812 at [23]); and 2. Articulation of the logical connection between the matter identified and the feared deviation from the course of deciding the question on its merits (Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [8], as confirmed by the High Court in Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 at [31], [63]).
As has been articulated in the Court's judgment, the present proceedings concern the appellants' applications to set aside the orders of RA Hulme J. The matters argued on the motions had nothing to do with issues raised before me during the trial or any orders that I may have made. The verdicts of guilty were returned by the jury, as the sole judges of the facts, and not by me as the trial judge.
In these circumstances, I was of the opinion that Mr Dhanji did not identify a coherent reason as to why a fair-minded lay observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind in determining the issues for decision on the notices of motion.

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: 02 September 2015

Criminal Procedure Act 1987(NSW)

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