REGINA v James SALEAM [1999] NSWCCA 86 | Case summary

The applicant, convicted of conspiracy to burn a car, sought police Special Branch files to support appeals alleging a police officer instigated the offence. The Court reiterated the two-part test for production: a legitimate forensic purpose and that it is 'on the cards' the documents will materially assist. Applying the High Court's Ridgeway balancing approach, the Court held that while police-instigated offending could, in extreme cases, justify exclusion or a stay, the applicant's material (Royal Commission extracts, reports, affidavits) did not make it sufficiently likely that the files would disclose that Detective Ireland instigated the crime. The DPP had no relevant documents. The production applications were dismissed.

SIMPSON J: 3 In these interlocutory proceedings the applicant seeks orders for the production of documents by the Director of Public Prosecutions and the Commissioner of Police. 4 In 1994 the applicant was charged in the District Court with conspiring, in 1990, with John Rex Anderson maliciously to damage by fire a motor vehicle the property of Peter Coleman. He applied for a permanent stay of proceedings. As one of the bases on which he sought the stay he alleged that he had been induced to commit the offence by his former wife, who in turn was acting at the instigation of a police officer. On 28 September 1994 Judge Viney refused the application. He observed that there was no evidence that the applicant was induced by his wife to commit the offence, nor that any inducement to that end had emanated from the police and that so much had been conceded by counsel who then appeared for the applicant. 5 The trial proceeded as a trial by judge sitting alone pursuant to s 32 of the Criminal Procedure Act 1986. The applicant was convicted. On 6 October 1994 Judge Viney sentenced him to a total term of imprisonment for two years made up of a minimum term of six months and an additional term of eighteen months. 6 To some extent this court was hampered by a scarcity of relevant material. For example, Judge Viney's reasons for convicting the applicant are not available. Had they been available, it would be possible to discern the issues that arose for determination. The applicant informed this court that no oral evidence was called in the Crown case; all prosecution evidence was tendered, without objection, by way of statements. One such statement was that of a Detective Ireland. Since he was not required for cross-examination (and the applicant was then represented by experienced counsel) it may be taken that his evidence was not in issue. 7 This court did, however, have the advantage of a transcript of an unsworn statement made by the applicant at the trial. He clearly stated that he had agreed to participate in the burning of the car, that he had done so at the request of his former wife, but that he had imposed limits on the degree of damage that was to be inflicted. He also said that, on a number of occasions prior to the actual burning of the car, he had urged his former wife to abort the plan but that she had persuaded him to continue. The applicant could not more clearly have admitted to having entered the agreement that was the essence of the charge of conspiracy. In this court, he did not seek to resile from the contents of this statement. It is worth emphasising that the charge he faced was one of conspiracy, and was complete at the time the agreement was made, no matter what efforts he may subsequently have made to withdraw from the arrangements to bring the conspiracy to fruition. There was, therefore, no issue that the applicant had committed the offence with which he was charged, and he expressly acknowledged the inevitability of conviction. 8 On 30 December 1997 the applicant filed a Notice of Appeal against the conviction and an application for an extension of time within which to appeal. He also seeks leave to appeal the order refusing a permanent stay of proceedings. The applications for extension of time and for leave to appeal the refusal of the stay are the substantive proceedings now before this court. It is for the purposes of these applications and any appeal for which leave is granted that he seeks the documents the subject of the present proceedings. 9 The application concerning the Director of Public Prosecutions may be disposed of shortly. The DPP is prepared to consent to an order in the terms sought, but says he has no documents meeting the descriptions given. That assertion should be accepted. There is therefore no purpose to be served in making the order. 10 The applicant has identified with some particularity the documents he seeks to have produced by the Commissioner of Police. All are documents, files or records he claims were constructed and maintained by the Special Branch (now disbanded) of the NSW Police Service. Any documents in existence that would match the description he gives would relate to himself, his former wife, the alleged victim of the offence, his alleged co-conspirator, and to relations and dealings between those individuals and officers of the Special Branch. The files he seeks relating to the named individuals are not limited to records covering any particular period; other documents he seeks are limited to periods in 1989 and 1990. The applicant claims that it is "on the cards" that there would emerge from these documents material that falls within the category of fresh evidence admissible on his applications (and appeals, if leave is granted) of such a nature that there is a significant possibility that he would have been acquitted of the charge of conspiracy had the evidence been available at the trial (R v Gallagher (1986) 160 CLR 392; R v Mickelberg (1989) 167 CLR 259 at 301-302); or would have been successful in his application for a stay. The "on the cards" test was formulated by Gibbs CJ in Alister v R (1984) 154 CLR 404 at 414 in relation to an appeal against conviction for murder on the ground that access to certain documents produced in answer to a subpoena had been denied on the basis of public interest immunity. 11 The principles governing applications of this kind 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) Legitimate forensic purpose: 12 In order to determine whether the applicant has identified a legitimate forensic purpose it is necessary to examine the issues he proposes to raise on his appeal against conviction (should an extension of time be granted) and his application for leave to appeal the order refusing a permanent stay. The applicant accepted, during the course of argument, that these issues were identical. At the foundation of his argument is the contention that his participation in the offence was brought about by misconduct on the part of a police officer, Detective Neville Ireland, and that that misconduct was of such gravity that a conviction based thereon ought not be permitted to stand. The misconduct he alleges against Detective Ireland was procuring his (the applicant's) former wife to persuade the applicant to commit the offence. This was the basis on which he unsuccessfully sought a permanent stay of proceedings, which was refused specifically because of the absence of evidence. The applicant now hopes to obtain, from the identified documents, evidence that will fill that void. What he hopes to find in the documents is evidence that will disclose (or give rise to a reasonable inference) that Detective Ireland was the initiator of the offence. Obtaining such material would set off a chain of events: it would strengthen his application for an extension of time to appeal the conviction; if the extension were granted, it would strengthen his prospects of success on the appeal; if the appeal were successful, it would strengthen his chances of obtaining an order in this court of a verdict of acquittal rather than an order for a new trial; or, if a new trial were ordered, it would strengthen his chances of successfully defending the charge. At the same time, the material would strengthen his application for leave to appeal the refusal of the stay; if leave were granted, it would strengthen his prospects of success in the appeal; if the appeal were successful it would strengthen his chances of obtaining from this court an order permanently staying the proceedings; or if this court remitted that matter to the District Court for further hearing, it would strengthen his prospects of success in that hearing. If the documents he seeks to have produced contain what he hopes they contain, they are relevant to each step of the proceedings. It is therefore appropriate to consider his application at this stage. Contrary to the submission advanced on behalf of the Commissioner, it would not be appropriate to defer its consideration until after the question of leave to appeal has been determined. The documents are vital to the issue the applicant wishes to advance on the leave and extension applications themselves. 13 As stated above, the fact that the applicant anticipates establishing from the documents he seeks is that Detective Ireland procured the applicant's former wife to embroil the applicant in the conspiracy - in other words, that it was Detective Ireland who instigated the offence in which the applicant admitted he participated. From that fact the applicant would argue that application of the principles propounded by the High Court in R v Ridgeway (1995) 184 CLR 19 dictate a conclusion that a conviction for an offence that had its genesis in such conduct on the part of a police officer ought not be allowed to stand. Since the utility of ordering production of the documents he seeks depends upon the validity of this argument, it is convenient to turn to that question. 14 In his written argument the applicant used the term "entrapment" to convey the issue he wishes to raise. In Ridgeway, all members of the court were unanimous in holding that there is no substantive defence of entrapment in Australian law: pp 27-30 per Mason CJ, Deane and Dawson JJ; p 46, per Brennan J; pp 56-7, per Toohey J; pp 72-3, per Gaudron J; p 82, per McHugh J. An order for production of the documents would not assist the applicant to mount his appeals on this basis. 15 However, as I understood the substance of the applicant's argument, it went beyond a possible defence of entrapment, and encompassed the public policy (Mason CJ, Deane, Dawson, Brennan JJ) or abuse of process (Toohey and Gaudron JJ) considerations which moved the High Court to its ultimate conclusion in Ridgeway. 16 In Ridgeway the High Court was concerned with a conviction for an offence of possession of drugs imported into Australia in contravention of the Customs Act 1901. The drugs had been imported by arrangement with and under the auspices of members of the Australian Federal Police. There was no statutory authorisation for the importation which was therefore unlawful. Further, the importation took place for the specific purpose of enabling the appellant, who was under suspicion as a drug dealer, to come into possession of the drugs and thus to provide the foundation for the charge. The unlawful importation under the control of police was thus integral to the offence committed by the appellant. Without the anterior unlawful activity of the police, the appellant's offence could not and would not have been committed. 17 Six members of the Court joined in setting aside the conviction. Mason CJ, Deane and Dawson JJ in a joint judgment, and Brennan and Toohey JJ in separate judgments, held that, having regard to the circumstances in which the appellant committed the offence, considerations of public policy required the exclusion of the prosecution evidence that the drug had been illegally imported, an essential element of the offence. Gaudron J held that the prosecution should be permanently stayed, for fundamentally similar reasons. 18 The applicant argues that the conduct of Detective Ireland that he hopes to establish from access to the documents he seeks to have produced is so reprehensible as to lead to a similar result in his case: either the exclusion of prosecution evidence of his participation, on the basis that his participation occurred only by reason of illegal or improper conduct on the part of Detective Ireland, of so serious a nature that use of the evidence of his offence ought not be permitted in a criminal prosecution; or a stay of proceedings for essentially the same reason. In either case, his conviction would be quashed. 19 For the purpose of the present argument only, it will be assumed that the material the applicant seeks would or might establish the fact that the initial, and true, author of the applicant's offence was Detective Ireland. The first question to be answered is whether that fact could or would have the result for which the applicant contends. If it could not or would not, any other question is academic and need not be determined. 20 Analysis of the judgments in Ridgeway shows that the principle may extend so far. Mason CJ, Deane and Dawson JJ recognised two categories of case, the first being those in which the police conduct has induced an accused person to commit an offence which he or she would not otherwise have committed. If this is the category into which the applicant seeks to bring his own case, he gains little comfort from what follows. Their Honours said that in that category of case, the public interest in conviction and punishment of those guilty of crime is likely to prevail over other considerations "…except in what we would hope to be the rare and exceptional case where the illegality or impropriety of the police conduct is grave and either so calculated or so entrenched that it is clear that considerations of public policy relating to the administration of criminal justice require exclusion of the evidence." (p 39) 21 The second category consists of those cases in which illegal police conduct is itself the principal offence to which the charged offence is ancillary, or creates or itself constitutes an essential ingredient of the alleged offence. It may be that the applicant seeks to bring his case within this category. Even in these cases, their Honours doubted (absent particular circumstances) that considerations of public policy relating to the integrity of the administration of justice would require exclusion of evidence either of the offence or of the particular element of the offence or of the particular element of the offence created by police illegality. However, where those particular circumstances exist - where, as their Honours said, for example, the illegal police conduct has been condoned by those in higher authority, and criminal proceedings have not been brought against the police - "…those considerations of public policy will be so strong that an extremely formidable case for exclusion will be raised." (p 39) 22 It was the existence of circumstances that made the case in Ridgeway an "extreme one" that led Mason CJ, Deane and Dawson JJ to conclude that the prosecution evidence in that case should have been excluded. Their Honours spelled out the circumstances that led to this conclusion: grave and calculated police criminality the creation of an actual element of the charged offence; selective prosecution; absence of any real indication of official disapproval or retribution; the achievement of the objective of the criminal conduct if the evidence were admitted. Few, if any, of these circumstances here exist. Nevertheless, if it were shown that a police officer deliberately set out to create a situation in which a person committed an offence he had not otherwise contemplated (which is what the applicant alleges) the case could be seen as extreme in the same sense as their Honours viewed the circumstances in Ridgeway to be extreme, and would warrant, at the very least, consideration being given to adoption of the same course as was there taken. 23 Here, too, it must be remembered that it is not necessary for the applicant to establish his ultimate entitlement to the relief he would eventually seek. His legitimate forensic purpose will be made out if he can establish that there are sufficient grounds to warrant consideration being given to that relief. If he can show a properly arguable basis, on the assumed facts, to support his proposed contentions in the substantive applications, he will have done all that is necessary to identify his legitimate forensic purpose. 24 All members of the High Court in Ridgeway (except McHugh J, who dissented in the result) considered that, where an offence has been committed as a result of unlawful conduct of law enforcement officers, a court would be obliged to balance the nature and gravity of the offence charged against the nature and gravity of the unlawful police conduct, in order to determine, in the circumstances of each case, whether the evidence ought be excluded or the proceedings stayed; see for example p.51, per Brennan J; p.64 per Toohey. If Detective Ireland can be shown to have acted as the applicant alleges, that is sufficient, in my view, to constitute unlawful conduct. But, in any event, Mason CJ, Deane and Dawson JJ considered that the principle extends also to improper conduct. (pp 35-36) 25 Applying that analysis to the argument the applicant advances, I have come to the view that, should the applicant be able to satisfy the "on the cards" test, the orders he seeks should be made. It would then be for this court (or the District Court) to determine the competing public policy interests - the interest in the prosecution of crime, and the interest in the integrity of the administration of justice. (ii) "On the Cards" 26 That conclusion calls for examination of the assumption earlier provisionally made (paragraph 18). That is the assumption that the documents will or might disclose evidence of illegality or impropriety on the part of Detective Ireland such as to warrant consideration being given to either of the courses of action mentioned. 27 It is therefore necessary to consider the evidence presented by the applicant to establish the possibility that such disclosures might emerge from the documents. 28 The applicant has placed before this court a good deal of material. He has sworn three affidavits, on 30 October 1998, 8 April 1999 and 12 April 1999. To the first and second of these are annexed a variety of documents. These include extracts from the transcript of the Royal Commission into the NSW Police Service; two reports to Parliament of the Police Integrity Commission (1998 and 1999) and one of the NSW Privacy Committee (1978), each concerning the Special Branch; correspondence; extracts from the transcript of oral evidence given by Detective Ireland in the applicant's committal proceedings; and a copy of an affidavit sworn by his former wife on 14 July 1998. 29 These documents contain evidence that Detective Ireland was, at material times, the officer in charge of the Special Branch, and that serious questions exist about his veracity and conduct, and about the operations and performance of the Special Branch generally. In the Royal Commission Detective Ireland's bona fides and credibility were seriously damaged. If the substance of his evidence relevant to the applicant's commission of the offence had been contested at the applicant's trial, newly discovered information about his probity may have been relevant to the substantive applications in this court. However, his evidence in that regard was not in issue at the trial, and is not now in issue. 30 In her affidavit the applicant's former wife deposes that during 1987 and 1990 she was in regular contact with Detective Ireland as an informer; and that during that time she was emotionally unstable and suffered from a variety of psychiatric disorders. The effect of the content of this affidavit is that any information she may have given to the detective was likely to have been manifestly unreliable. She gave an account of the initiation of the applicant's offence that is largely in conformity with his present assertions; that is, that, acting as the instrument of Detective Ireland, she incited the applicant to conspire with Anderson to damage the car. 31 The extracts from the transcript of the Royal Commission reveal some impropriety and maladministration in the operation of the Special Branch and some misconduct, not related to the present case, on the part of Detective Ireland. The misconduct concerns a totally unrelated event and some of financial impropriety. There is nothing from which one could even speculate that the documents might contain information that would disclose or permit the inference that Detective Ireland instigated the offence with which the applicant was charged. The Royal Commission transcript is the high point of the applicant's case. The reports to Parliament of the Police Integrity Commission and the Privacy Committee contain no references to anything from which it might be inferred, or even conjectured, that the Special Branch files contain such information. None of the material is directly or (except perhaps in one respect) even indirectly related to the applicant, or to other individuals involved in the applicant's case; the one possible exception is the assertion that some questions asked of Detective Ireland in the Royal Commission about his relationship with an informer identified by a code, were in fact questions about his former wife. Even if that fact be assumed, there is nothing in the questions or answers to suggest that Detective Ireland manipulated her as is now sought to be shown. 32 Making the orders sought would inevitably involve the Commissioner in devoting resources, both financial and personal, to the location and collation of the documents. While one would not shrink from making such an order if a proper basis were shown, and, indeed, the criminal justice system would demand that such an order be made if that were the case, I am of the view that no such basis has been shown. 33 That being so, I am of the view that the Commissioner of Police should not be ordered to produce the documents. 34 I would dismiss both applications.

REGINA v James SALEAM

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