Regina v Richard Lipton

Practice Note (criminal evidence: unused material) [1982] 1 All ER 734

Statutes Amendment (Criminal Procedure Bill), Second Reading Speech, South Australia House of Assembly, Parliamentary Debates (Hansard), 20 September 2005, 3465 Category: Principal judgment Parties: Director of Public Prosecutions (Appellant) Richard Lipton (Respondent) Attorney General of New South Wales (Intervener) Representation: G J Bellew SC (Appellant) P Hastings SC with K Averre (Respondent) L Babb SC with A Mitchelmore (Intervener) Director of Public Prosecutions (Appellant) James A Moustacas & Co Solicitors (Respondent) Crown Solicitor (Intervener) File Number(s): 2009/78658 Publication restriction: No Decision under appeal Citation: R v Richard Lipton (No 2) [2010] NSWDC 295 Date of Decision: 2010-11-26 00:00:00 Before: Finnane DCJ File Number(s): 2009/78658

Judgment 1McCOLL JA: Richard Lipton, the respondent, has been charged with two counts of supplying a large commercial quantity of a prohibited drug pursuant to s 25(2) of the Drug Misuse and Trafficking Act 1985. He pleaded guilty to both counts on 5 November 2009 and was committed for sentence in the District Court of New South Wales. He appeared for sentence before Finnane DCJ on 23 September 2010. 2Soon after he was committed for trial the respondent's solicitors asked the Director of Public Prosecutions (the "DPP") to produce documents relating to the role of a Ms Melanie Brown in relation to his involvement in the offences to which he had pleaded guilty. After his informal requests were unsuccessful, the respondent's solicitor issued a subpoena seeking production of the documents. The subpoena was set aside on the basis that the respondent had not identified any legitimate forensic purpose warranting an order requiring documents to be produced. A claim of public interest immunity in respect of the documents apparently caught by the terms of the subpoena was not dealt with. 3When the matter was listed for sentence the respondent filed a notice of motion seeking an order that the proceedings be stayed until, in substance, the DPP disclosed such documents to him. 4The primary judge acceded to that request: R v Richard Lipton (No 2) [2010] NSWDC 295. He ordered that the sentencing proceedings be stayed until: (1)The DPP has sought and obtained from the Officer in Charge all documents pertaining to the relationship between the Police and Ms Melanie Brown; (2)The DPP has formed an opinion on whether those documents may be relevant to any matter of sentence of the [respondent]; and (3)The DPP has communicated that opinion to the [respondent's] legal adviser. 5The DPP appeals against his Honour's interlocutory judgment or order pursuant to s 5F(2) of the Criminal Appeal Act 1912. He seeks an order vacating the primary judge's orders. The Attorney General of New South Wales was granted leave to intervene. 6For the reasons that follow I am of the view that the appeal should be dismissed.

Legislative framework 7The following sections of the Director of Public Prosecutions Act 1986 (the "DPP Act") are relevant: "7 Principal functions (1) The principal functions and responsibilities of the Director are: (a) to institute and conduct, on behalf of the Crown, prosecutions (whether on indictment or summarily) for indictable offences in the Supreme Court and the District Court, (b) to institute and conduct, on behalf of the Crown, appeals in any court in respect of any such prosecution, and (c) to conduct, on behalf of the Crown as respondent, any appeal in any court in respect of any such prosecution. ... 15A Disclosures by investigating police officers (1) Police officers investigating alleged indictable offences have a duty to disclose to the Director all relevant information, documents or other things obtained during the investigation that might reasonably be expected to assist the case for the prosecution or the case for the accused person. (2) The duty of disclosure continues until one of the following happens: (a) the Director decides that the accused person will not be prosecuted for the alleged offence, (b) the prosecution is terminated, (c) the accused person is convicted or acquitted. (3) Police officers investigating alleged indictable offences also have a duty to retain any such documents or other things for so long as the duty to disclose them continues under this section. This subsection does not affect any other legal obligation with respect to the possession of the documents or other things. (4) The regulations may make provision for or with respect to the duties of police officers under this section, including for or with respect to: (a) the recording of any such information, documents or other things, and (b) verification of compliance with any such duty. (5) The duty imposed by this section is in addition to any other duties of police officers in connection with the investigation and prosecution of offences." 8Section 16 of the DPP Act empowers the DPP to give directions referred to in s 16(2) to the Commissioner of Police requiring the latter to refer specified information or kinds of information to the DPP for the purpose of enabling him to consider "instituting or carrying on a prosecution or proceedings" of various classes. Section 37 of the DPP Act authorises the Governor to make regulations not inconsistent with the Act. 9Pursuant to s 13 of the DPP Act, the DPP may, by order in writing, furnish guidelines to the Deputy Directors, the Solicitor and the Crown Prosecutors with respect to the prosecution of offences, including guidelines as to the exercise of specified functions (whether statutory or not). In purported compliance with s 13, the DPP issued Guideline 18 (the "Disclosure Guidelines") which relevantly reads: " 18 Disclosure [Furnished 20 October 2003; amended 1 June 2007] Prosecutors are under a continuing obligation to make full disclosure to the accused in a timely manner of all material known to the prosecutor which can be seen on a sensible appraisal by the prosecution: · to be relevant or possibly relevant to an issue in the case; · to raise or possibly raise a new issue whose existence is not apparent from the evidence the prosecution proposes to use; and/or · to hold out a real as opposed to fanciful prospect of providing a lead to evidence which goes to either of the previous two situations. .... In all matters prosecuted by the Director, police, in addition to providing the brief of evidence, must notify the Director of the existence of, and where requested disclose, all other documentation, material and other information, including that concerning any proposed witness, which documentation, material or other information might be of relevance to either the prosecution or the defence in relation to the matter and must certify that the Director has been notified of all such documentation, material and other information. (Procedures are in place for such certification to occur.) Subject to public interest immunity considerations, such material, if assessed as relevant in the way described above, should be disclosed and, where practicable, made available, to the defence. Where a prosecutor receives, directly or indirectly, sensitive documentation, material or information, or material that may possibly be subject to a claim of public interest immunity, the prosecutor should not disclose that documentation, material or information to the defence without first consulting with the police officer-in-charge of the case. The purpose of the consultation is to give that officer the opportunity to raise any concerns as to such disclosure. Accordingly, the officer should be allowed a reasonable opportunity to seek advice if there is any concern or dispute. Where there is disagreement between a prosecutor and the police as to what, if any, of the sensitive documentation, material or information should be disclosed and there is no claim of public interest immunity, then in cases being prosecuted by counsel, the matter is to be referred to the Director or a Deputy Director and in cases being prosecuted by lawyers, the Solicitor for Public Prosecutions or a Deputy Solicitor. In cases where a claim of public interest immunity is to be pursued or is being pursued, then the question of disclosure will be determined by the outcome of that claim. ... Rare occasions may arise where the overriding interests of justice - for example, a need to protect the integrity of the administration of justice, the identity of an informer (covered by public interest immunity) or to prevent danger to life or personal safety - require the withholding of disclosable information. Such a course should only be taken with the approval of the Director or a Deputy Director. ... Reference should be made to Barristers' Rules 66, 66A and 66B and Solicitors' Rules A66, A66A and A66B (Appendix B). The requirement of Barristers' Rule 66 and Solicitors' Rule A66 to disclose ' the means of finding prospective witnesses ' may be satisfied by making the witnesses available to the opponent where possible, subject to public interest immunity considerations..." (Emphasis added) 10On the day s 15A of the DPP Act took effect (19 November 2001), cl 3A was added to the Director of Public Prosecutions Regulation 2000 (the "2000 Regulation") by the Director of Public Prosecutions Amendment (Pre-Trial Disclosure) Regulation 2001 (the "Pre-Trial Disclosure Regulation"). 11The Pre-Trial Disclosure Regulation was made pursuant to s 15A and s 37 of the DPP Act. Clause 3A prescribed Form 1 as the pro forma Disclosure Certificate to be completed and signed by the police officer for the purposes of s 15A. The 2000 Regulation was repealed in 2005 and replaced by the Director of Public Prosecutions Regulation 2005 (the "2005 Regulation"), cl 5 of which prescribed the pro forma Disclosure Certificate in the form in force for the purposes of the present proceedings. It did not relevantly differ from that prescribed by the Pre-Trial Disclosure Regulation. The pro forma Disclosure Certificate is as follows: "Schedule 1 Disclosure certificate (for prosecutions and advisings) (Clause 5) (Director of Public Prosecutions Act 1986, section 15A) Matter of:.......................................Charge No(s): H............. For indictable offence(s) of:................................................ Acknowledgement I am aware that as a Police officer investigating an alleged indictable offence I have a duty, under section 15A of the Director of Public Prosecutions Act 1986, to disclose to the Director of Public Prosecutions (DPP) all relevant information, documents or other things obtained during the investigation that might reasonably be expected to assist the case for the prosecution or the case for the accused person. I am aware that this duty continues until the DPP decides that the accused person will not be prosecuted for the alleged offence(s), the accused person is found guilty or acquitted, or the prosecution is terminated. I am aware that my duty to disclose as outlined above is subject to bona fide claims of privilege, public interest immunity or statutory immunity and I am aware that such claims are to be directed through my Commander to the General Manager, Court and Legal Services of the NSW Police Force. Certification 1 Relevant sensitive material not contained in the brief to the DPP There IS/IS NO [cross out the word or words that do not apply] sensitive material that is not contained in the brief of evidence provided to the DPP which might reasonably be expected to assist the case for the prosecution or the case for the accused person. In this certificate, 'sensitive material' means all relevant information, documents or other things obtained during the investigation that are subject to a bona fide claim of privilege, public interest immunity or statutory immunity. 2 Relevant non-sensitive material not contained in the brief to the DPP I am aware that relevant material that is not sensitive material that is not contained in the brief is to be listed in the manner indicated in the Schedule to this certificate and, unless it is impracticable, I am required to provide a copy to the DPP with this certificate. If it is impracticable to provide any or all of such material with this certificate, I am aware that I must retain the material for as long as the duty to disclose it exists and facilitate access to the material by the DPP. There IS/IS NO [cross out the word or words that do not apply] relevant material that is not sensitive material that is not contained in the brief of evidence provided to the DPP which might reasonably be expected to assist the case for the prosecution or the case for the accused person. Undertaking I undertake to advise the DPP in writing, as soon as practicable, if I become aware of any additional information, documents or other things that might reasonably be expected to assist the case for the prosecution or the case for the accused person. Signed [OIC of case]... ... Schedule Page of Matter of: Charge No(s): H Schedule of relevant non-sensitive information, documents or other things (Not included in the brief of evidence) Description of information, document or other things (Accurately list all relevant material briefly) Is the material attached? (Mark "YES" or "NO" against each)" 12Both the Disclosure Guidelines and the pro forma Police Disclosure Certificate were instruments made under the DPP Act. Accordingly, they are to be construed pursuant to the Interpretation Act 1987 and principles of statutory construction not inconsistent with that Act: s 3(1), s 5, Interpretation Act 1987; see also Mallard v R [2005] HCA 68; (2005) 224 CLR 125 (at [63]) per Kirby J; R v Ng [2002] VSCA 108; (2002) VR 257 (at [47] - [56]). 13Section 15A was inserted into the DPP Act by Sch 2 to the Criminal Procedure Amendment (Pre-Trial Disclosure) Act 2001. In the Second Reading Speech to the Criminal Procedure Amendment (Pre-Trial Disclosure) Bill, the New South Wales Attorney General, the Hon Bob Debus MP, said (New South Wales Legislative Assembly, Parliamentary Debates , (Hansard), 16 August 2000, at 8288): "The purpose of the bill is to introduce a process where courts, on a case-by-case basis, may impose pre-trial disclosure requirements on both the prosecution and the defence to reduce delays and complexities in criminal trials. Pre-trial disclosure in New South Wales is presently subject to ad hoc procedure and practice that diminishes consistency and certainty in case management. The present situation is regulated by a combination of common law rules, legislation, prosecution guidelines, Bar Association and Law Society rules and Supreme Court practice directions. This bill improves upon and formalises these requirements... Schedule 2 amends the Director of Public Prosecutions Act 1986 to formalise the general duty placed on police officers to disclose all relevant information and material obtained during the investigation of an indictable offence to prosecuting authorities ." (Emphasis added) The Attorney General emphasised that the Bill should be read with the draft regulations which were being prepared to ensure they reflected the Government's intention with the reform. 14The provisions in Sch 1 of the Criminal Procedure Amendment (Pre-Trial Disclosure) Act amended the Criminal Procedure Act 1986 to create a regime for pre-trial disclosure in complex criminal trials. There is no suggestion that the respondent's proceedings would have been so characterised. 15In 2009 the Criminal Procedure Act was further amended by the Criminal Procedure Amendment (Case Management) Act 2009 (the "2009 amendments") to insert a new Div 3 into Ch 3, Pt 3 entitled "Case management provisions and other provisions to reduce delays in proceedings". The purpose of the Division is to reduce delays in proceedings on indictment by requiring certain pre-trial disclosure by the prosecution and the defence and enabling the court to undertake case management where suitable in those proceedings: s 134, Criminal Procedure Act . The Division applies to proceedings in which the indictment was presented on, or filed on or after, the substitution of those provisions on 1 February 2010: cl 63(1), Sch 2, Criminal Procedure Act . The pre-existing case management provisions continued to apply in respect of proceedings in which the indictment was presented or filed before that substitution: cl 63(2), Sch 2, Criminal Procedure Act . 16Part 3 of the Criminal Procedure Act applies to proceedings relating to the sentencing of a person by the District Court: s 121, definition of "criminal proceedings". However the respondent accepted that the 2009 amendments did not apply, even by analogy, to the respondent's case because of their commencement date. 17Finally I note that it would appear that any claim for public interest immunity would have to be determined pursuant to s 130 and s 131A of the Evidence Act 1995: see, for example, Attorney General v Kaddour & Turkmani [2001] NSWCCA 456. The Attorney General stated, without demur by either the appellant or respondent, that s 131A was not concerned with disclosure either between the police and the DPP or between the DPP and the accused.

Statement of the Case 18The respondent was arrested on 21 May 2009 after a number of drug dealings with an undercover officer ("UCO") of the New South Wales Police acting under the direction of investigating police attached to the New South Wales Crime Commission. He pleaded guilty to two counts of supplying a large commercial quantity of a prohibited drug and on 5 November 2009 was committed for sentence in the District Court of New South Wales. 19Throughout the period during which the respondent conducted the drug dealings with the UCO he was in a personal relationship with Ms Brown. He has instructed his counsel that he had many discussions with her in relation to his drug dealings with the UCO: see Lipton v R [2010] NSWCCA 175 (at [2]). 20On 16 September 2009, in purported compliance with s 15A of the DPP Act, the NSW Police provided a Disclosure Certificate (the "Police Disclosure Certificate") to the DPP for the purposes of the respondent's matter, which included the following: "1. Relevant SENSITIVE MATERIAL not contained in the brief to the DPP. There IS sensitive information, document or other thing that is not contained in the brief of evidence provided to the DPP which might reasonably be expected to assist in the case for the prosecution or the case for the accused person. In this certificate sensitive material means all relevant information, documents or other thing obtained during the investigation that are subject to a bona fide claim of privilege, public interest immunity or statutory immunity." (Emphasis in original) 21The Police Disclosure Certificate was not provided to the respondent. 22On 18 September 2009 the DPP prepared a pre-conference disclosure certificate in accordance with the obligation imposed on him by s 9 of the Criminal Case Conferencing Trial Act 2008. Pursuant to s 9(2) of that Act a copy of the pre-conference disclosure certificate was to be served on the respondent or his legal representative. 23The pre-conference disclosure certificate referred to the fact a Disclosure Certificate had been served on the DPP by the officer in charge pursuant to cl 5 of the 2005 Regulation. It certified that: "In compliance with Guideline 18 of the Prosecution Guidelines ... all material in the possession of the Prosecutor which can be seen on a sensible appraisal by the Prosecutor : a. to be relevant or possibly relevant to an issue in the case ; b. to raise or possibly raise a new issue whose existence is not apparent from the evidence the Prosecution proposes to use, and/or; c. to hold out a real (as opposed to a fanciful) prospect of providing a lead to evidence that goes to either of the previous situations; has been disclosed excepting material which is subject to a claim of Legal Professional Privilege, Public Interest Immunity, Sexual Assault Communications Privilege or other statutory privilege." (Emphasis added) 24Schedule 1 of the pre-conference disclosure certificate, "Items Served" was blank under the heading "Informer Information". Schedule 2, "Additional Disclosure of Relevant Information" stated, in substance, that the prosecution did not rely on the evidence of a witness informer. The pre-conference disclosure certificate did not set out, in terms or otherwise, the first paragraph of the Police Disclosure Certificate. The pre-conference disclosure certificate was tendered before the primary judge. 25On 9 October 2009, the respondent's solicitor wrote to the DPP drawing attention to references in the Brief of Evidence relating to the role of Ms Brown who, the letter suggested "was an accomplice regardless of her role as an informant." He suggested that in order to discharge the obligations of the prosecutor to ensure that all material evidence was disclosed, steps should be taken to require the production of relevant records held by the police in relation to communications with Ms Brown, and Ms Brown's communications with the respondent. On 22 October 2009, the DPP solicitor, Mr Allison, received an email from the Officer in Charge of the investigation stating the Police would not be providing the information sought by the defence and that the Crown Solicitor had been informed. Mr Allison communicated to the respondent's solicitor that there was no further material to be disclosed and there would likely be a public interest immunity issue. 26On 25 November 2009, the respondent issued a subpoena to the Commissioner of Police and the NSW Crime Commission. The subpoena called for the production of the following: "1. All duty books notebooks and diaries then on issue to any officer or investigator involved in the instigation and/or arrest of Richard Alexander LIPTON in the period January 2009 to May 2009. 2. All statements and reports made in relation to the said matter in relation to Melanie BROWN - referred to in police statements/intercepts as a 'unidentified female'. 3. All telephone or other electronic recordings of communications as between Richard Alexander LIPTON and Melanie BROWN. 4. All written or electronic records of communications between any officer of the NSW Police and Melanie BROWN." 27By a notice of motion filed in the District Court on 25 February 2010, the Commissioner of Police applied to set aside the subpoena. The Commissioner produced to the Court two folders of documents which it appears came within the terms of the subpoena, but argued that there was no demonstrated legitimate forensic purpose for their production. The Commissioner also submitted that if a legitimate forensic purpose was established, any documents would be protected by a claim of public interest immunity. 28King DCJ heard the motion. Paragraph one of the subpoena was confined by agreement between the parties. His Honour set aside paragraphs 2 and 4 of the subpoena on the grounds that they lacked a legitimate forensic purpose to require production: R v Lipton [2010] NSWDC 187. The fate of paragraph 3 of the subpoena is not apparent. 29King DCJ noted that that subpoena appeared to have been issued on the basis that Ms Brown introduced the respondent to the undercover operative and the respondent's suspicion that in so doing she was aware that the person she was introducing him to was, in fact, an undercover police officer: R v Lipton (at [19]). 30King DCJ summarised the material the respondent relied upon to establish there was a legitimate forensic purpose for the production of documents as follows: "12 The material relied on by Mr Hastings QC, counsel for the defendant, is contained in Exhibits 1 and 2. In particular, he points to Exhibit 1, para 8, in which Detective Senior Constable Robb said, in respect of the meeting on 17 April 2009 at Centennial Park: 'At 12.30pm I observed a Richard Lipton arrive at the Centennial Park restaurant with an unidentified female. At this time Lipton was wearing a white T-shirt, khaki coloured knee length shorts and glasses.' 13 While the female is further referred to in the course of the observations made by the officer of the meeting, she is not identified by name and remains as 'an unidentified female'. Exhibit 2 is the transcript of that meeting, where again the 'unidentified female', in fact Melanie Brown, takes part in the conversation between the undercover operative and the defendant. Her part in the conversation, according to the transcript, is a very limited one, there being more conversation relating to her in relation to what the parties might eat or drink than in relation to any topic related to the apparent purpose of the conversation: to arrange the supply of prohibited substances to the undercover operative by Mr Lipton. 14 However, at p 15, she asks the undercover operative, in effect, whether he had received the sample that she had sent. He indicated that someone else had received it, and that he had been told that it was 'good'. However, the conversation apart from the inquiry as to whether he had received the sample was otherwise essentially conducted thereafter between the undercover operative and the defendant. Clearly, Ms Brown was present and a party to the conversation, including the balance of the conversation not referred to but relevant to the prosecution of Mr Lipton in relation to arrangements for the supply of prohibited substances, and an agreement between the undercover operative and the defendant to pursue that object." 31His Honour concluded (at [24]) that no evidence had been provided to the Court to support any contention that the respondent was coerced or pressured or enticed into committing the offences or that the matter involved any entrapment by police officers. He characterised the subpoena (at [25]) as a "fishing expedition to establish whether or not Melanie Brown was a police informant". 32The Court of Criminal Appeal dismissed the respondent's appeal from King DCJ's judgment: Lipton v R . McClellan CJ at CL (with whom Hislop J and Barr AJ agreed) referred to the evidence King DCJ had described (at [12] - [14]). He observed (at [13]) that his Honour had: "...emphasised the fact that apart from the one occasion to which I have referred there was no other time at which Ms Brown was recorded as being present when arrangements were being made between the applicant and the undercover operative for the sale of drugs. Furthermore, his Honour found that there was no evidence of Ms Brown having coerced, pressured, or enticed the applicant to either commence dealing with the undercover officer or continuing in any way with any of the offences which he had committed. His Honour did accept that if Ms Brown had been acting as an agent of the authorities and she did coerce, pressure or entice the applicant into committing offences he would not otherwise have committed, this would be particularly relevant on sentence." 33McClellan CJ at CL dealt with Mr Hasting's submissions as follows: "16 In the course of his written submissions on behalf of the applicant, senior counsel said that, although evidence to this effect was not tendered, the applicant 'is, of course, directly aware of his own knowledge of the inducements and enticements made by Ms Brown to him continue to deal with the undercover officer in the face of his reluctance to do so, particularly in relation to the last dealing in which the undercover officer had gone to the applicant to supply a kilogram of cocaine and he can give evidence of those matters.' Quite apart from the applicant's own knowledge his counsel adverted to six matters which were said to be clear indicators in the evidence that Ms Brown was acting in collusion with the police. These were: a. The presence and participation of Ms Brown in the meeting in Centennial Park on 17 April 2009 to which I have previously referred; b. The continued reference by the police in statements to 'an unidentified female' which the police knew to be Ms Brown; c. The telephone conversations of the applicant were intercepted during the investigation and the police would have been aware of numerous conversations between the applicant and Ms Brown concerning the supply of drugs by the applicant to the undercover officer; d. The interception also captured numerous SMS messages to similar effect; e. Although the involvement of Ms Brown was obvious, she was 'written out' of the brief of evidence served by the prosecution; and f. Ms Brown was never arrested or charged in relation to the matters with which the applicant has been charged. 17 It was submitted that these matters were sufficient to show that it was 'on the cards' that the documents described in the subpoena are likely to contain records of communications between the investigating police and Ms Brown and accordingly the applicant was 'not fishing' for the purpose of ascertaining whether Ms Brown was an informant. Furthermore, it was submitted that as a number of documents had been provided to the Court it was perverse that the Court should rule on the matter before first examining those documents. 18 The applicant accepts that if Ms Brown had acted on her own initiative that would be the applicant's 'bad luck' and would have minimal relevance to his sentence. However, if Ms Brown had dealt with the applicant as a result of collaborating with investigating police, it was submitted that his case for a reduced sentence would be much stronger, but he requires access to the police documents if he is to effectively make that submission. Accordingly the applicant submitted that his Honour was in error in concluding that there was a lack of evidence to support the submission that there was a legitimate forensic purpose. It was submitted that his Honour had blurred into one general issue the two steps, identified in Saleam and Chidgey , which are involved in assessing the claim for access to the documents, namely the expression of the legitimate forensic purpose, and then, whether it had been shown that it 'was on the cards' that the documents would assist the applicant's case. 19 To my mind there are difficulties in the applicant's present position. I accept that the conjunction of circumstances put forward by the applicant to which I have referred in [16] raises a suspicion that Ms Brown may have had a relationship with the investigating police. However, the applicant has chosen not to place any evidence before the Court which supports the submission that Ms Brown took any step to coerce, pressure or entice him to deal with the undercover officer. Although that assertion is made by his counsel, before I would be satisfied that the applicant had established that it was 'on the cards' that the documents the subject of objection would assist his case, there would need to be at least some evidence of the influence which Ms Brown may have had in respect of the applicant's actions. 20 In written submissions on behalf of the respondent senior counsel acknowledged that before the primary judge the resolution of the matter turned upon the question of whether the applicant had demonstrated, beyond mere suspicion or speculation, that it was 'on the cards' that the documents would assist in proving the assumed facts and therefore materially assist his case. It was submitted that the highest the applicant's case rose was a suggestion that Ms Brown may have facilitated the detection and obtaining of evidence to prosecute the applicant but there was no evidence that she had encouraged him to commit the offence. 21 In my opinion this submission should be accepted. Although the matter is attended with significant suspicion the evidence does not presently suggest that the offence might not have been committed had the police not in some way facilitated it ( Taouk v R (1992) 65 A Crim R 387 at 403)." 34McClellan CJ at CL added the following comments: "22 Although the application to this Court should be dismissed, it would seem that the resolution of the present application may not be an end to the matter. If the applicant continues to assert that Ms Brown acted so as to coerce, pressure or entice him to deal with the undercover officer, no doubt he can bring evidence of her actions which have had the relevant effect. Depending upon the nature of that evidence, it may be possible to infer from the matters to which I have referred ... 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 it is 'on the cards' that the documents would materially assist the applicant's case on sentence. However, that would depend upon the issue of a fresh subpoena and, if there is a challenge by the respondent, the evidence tendered in support of the applicant's position." 35The respondent did not issue a fresh subpoena. Instead he filed a notice of motion in the District Court on 11 October 2010 seeking the following orders: "(1) That the proceedings against [the respondent] be stayed until such time as the Crown discloses to the Defence, materials relating to communications between member 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 respondent], currently in possession of the New South Wales Police. (2) Such other orders as the Court sees fit."

Primary judgment 36The primary judge heard the motion. 37Mr Allison, a solicitor employed in the Office of the DPP with care, control and management of the respondent's proceedings swore an affidavit in response to the notice of motion. The affidavit set out some background to the respondent's arrest, charging and the provision by the Police to the DPP of evidence relating to the charges and communications with the respondent's solicitor concerning the latter's request to obtain access to the documents. 38It also referred to the Police Disclosure Certificate as follows: "7. Pursuant to s15A of the [DPP] Act, the police forwarded a disclosure certificate to the ODPP...dated 16 September 2009. The disclosure certificate indicated there was relevant sensitive material not contained in the brief of evidence..." 39The Police Disclosure Certificate was not attached to Mr Allison's affidavit. It was not referred to in any of Mr Allison's communications with the respondent's solicitor. It does not appear to have been tendered before the primary judge. The DPP made copies of it available to the Court during the hearing of the appeal. He did not suggest the Court should not have regard to its contents. No doubt this was because the contents of the Police Disclosure Certificate were, in substance, before the primary judge. First, the pre-conference disclosure certificate referred to the fact that, in substance, all relevant material had been disclosed to the accused except material subject to a claim for privileges, including public interest immunity. It could be inferred from that reference that cl 1 of the Police Disclosure Certificate had been completed by the deletion of the words " IS NO" in the pro forma cl 5 certificate. That inference was confirmed by the statement in paragraph 7 of Mr Allison's affidavit, which repeated the language of the heading to cl 1 of the pro-forma cl 5 certificate. 40Next, Mr Allison set out his communications with the respondent's solicitor in late 2009. He stated that other than the material served in the brief of evidence, he had never had possession of, or seen, documents relating to the respondent or Ms Brown and that he did not know if such documents were in existence. He further stated: "27. I believe that the police are claiming privilege in relation to the material sought by Mr Lipton. 28. I believe that the police have declined, and continue to decline, to disclose the material sought by Mr Lipton in order to maintain the privilege." 41Mr Allison was not cross-examined. 42The respondent's solicitor, Mr Moustacas, swore an affidavit dated 7 October 2010 for the purposes of the stay proceedings. It set out some background material, including pointing out that in response to the subpoena issued on 25 November 2009 counsel for the Commissioner of Police had produced two folders of documents which he asserted "came within the terms of the subpoena" but successfully persuaded King DCJ that the respondent should not have access to them. He attached two letters to the Office of the DPP in identical terms, dated 17 June 2010 and 13 September 2010, drawing attention to this fact and stated: "At the hearing before King DCJ, counsel for the police produced to the court two folders of documents coming within the terms of the subpoena, which sought the production of records of communications between police and Melanie Brown. It is clear therefore that there exists a substantial body of documentation which is material to the claim made on behalf of our client that Melanie Brown was acting at the behest of the investigating police when encouraging our client to continue to deal with the UCO. ... Our client should not have been denied access to this material by the obfuscation of the investigating police. We respectfully submit that it was never appropriate for you to simply accept the word of the police as to the discharge of your duty of disclosure, and that it is incumbent upon you to examine the material which you now know exists, in order to confirm that it should be properly disclosed. I note that DPP Guideline 18 provides a procedure for the treatment of material which may be the subject of a claim for public interest immunity, culminating in a referral to the Director or a Deputy Director, or the Solicitor for Public Prosecutions, or a Deputy Solicitor. It is not clear that the procedure is appropriate in the light of authorities such as R v Bunting (2002) 84 SASR 378 and R v Petroulias (No 22) (2007) 176 A Crim R 309, which indicates that, where there is a claim of privilege, the prosecution should still exercise independently its duty of disclosure. Accordingly, we ask that you properly exercise the duty of disclosure, at least as set down in your Guidelines and advise us of the outcome prior to the sentence hearing." 43Mr Allison responded to the second letter on 20 September 2010 advising that the Office of the DPP considered the respondent's "entitlement to the material was determined by the Court of Criminal Appeal". 44Mr Moustacas wrote to Mr Allison again on 22 October 2009 urging him to consider his position, drawing his attention to authorities and reiterating that there was objective evidence that relevant material existed concerning Mr Brown's role in "introducing our client to the UCO...". The letter stated: "This material relates to a matter of some significance to our client. There is a live issue as to the circumstances in which our client was enticed into dealing with a large commercial quantity of each drug, which he says was at the instigation of Brown who was clearly acting on behalf of the police. There is obviously material in the possession of the police which is relevant to that issue and should be disclosed. Accordingly, we ask that there be a proper discharge of the prosecution duty of disclosure with steps being taken to ascertain what material exists and why it cannot be produced, rather than simply adopting a blanket denial by the police." 45The primary judge concluded (at [8]) that: "8. In answer to the notice of motion, Mr Allison has sworn an affidavit in which he makes it clear that he has not sought any documents from the Police for his inspection. Rather, he has enquired of the officer in charge about what information he has and has been told that there is no information. I would take the answer of the officer in charge to mean that he does not intend to disclose to Mr Allison documents that he has concerning Melanie Brown. Having regard as I do to what occurred in the earlier proceedings, I would draw the inference that the Police regard the documents that undoubtedly exist as being not producible because of the decisions of Judge King and the Court of Criminal Appeal. Mr Allison has taken the view that he has no duty or even right to seek the documents." 46His Honour then considered the respondent's submission that the DPP was under an obligation to form his own opinion on the production of documents and could not delegate this duty to a police officer. He set out the Disclosure Guidelines and the form of pro forma Police Disclosure Certificate, then said: "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." 47He referred again to Mr Allison in the following terms: "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. 16. In taking this attitude, he is following a practice that has been in existence for as long as I can remember of the Crown taking no interest in public interest immunity claims and leaving it entirely to the Police who are represented in court by the Crown Solicitor and counsel briefed by the Crown Solicitor. 17. However, in my opinion that practice is wrong and should be abandoned. It is the prosecution that has the duty of disclosure. There may be an additional disclosure requirement imposed on Police officers, but that does not absolve the Director of Public Prosecutions from independently assessing whether or not there is material that should be disclosed. In my opinion, the Director cannot hide behind a certificate given by a Police officer and must, in circumstances where it is clear that Police have in their possession material that could be relevant to assist the accused either in mounting a defence or in mitigating sentence, enquire whether, notwithstanding the certificate, other information exists that might be relevant for disclosure to the accused. I have been referred to a number of authorities and in particular to the following: Grey v the Queen [2001] HCA 65; Mallard v the Queen [2005] HCA 68; Regina v Blackledge [1996] 1 Cr App R 326; Regina v Brown [1994] 1 WLR 1599; Regina v Maguire and others [1992] 2 WLR 767; Regina v Petroulias (no 22) [2007] NSWSC 2007 [sic, 154]. 18. These authorities all support the proposition that the duty of disclosure is on the Crown. A court cannot order the Crown to do its duty and to insist that the Police disclose information to it, but if the failure to disclose information creates a miscarriage of justice then the court can do something about the miscarriage of justice. " (Emphasis added) 48The primary judge considered the authorities in the following terms: "19. In the case of Mallard [2005] HCA 68, Police withheld from the prosecution material that might well have assisted the accused. The prosecution itself did not deliberately withhold information from the defence. It relied on the Police to provide all relevant information. Nevertheless, the High Court of Australia set aside the conviction and ordered a new trial. This is but one example of what can happen when the Police are allowed to determine what is relevant and what should be disclosed. 20. That being so, in my opinion, the Director of Public Prosecutions cannot through an employed solicitor refuse to seek access to the documents that bear on this issue on the basis that it is a matter for the Police and their views are what matters. 21. Contrary to what Mr Allison wrote, this issue was determined neither by his Honour Judge King nor by the Court of Criminal Appeal since the matter was not raised at all before Mr Hastings raised it with me. 22. A review of the authorities makes it plain that grave miscarriages of justice can occur when Police officers keep to themselves material relevant to an issue. 23. I have never understood how this practice has developed. The Crown is one and indivisible in the State of New South Wales. The Director of Public Prosecutions prosecutes all trials in the State of New South Wales. Police have no part in the prosecution process. Police conduct investigations and collect evidence but at no point do they determine whether somebody should be prosecuted. They are entitled to express their opinions to the offices [sic, should be officers] of the Director of Public Prosecutions and they can seek advice from officers of the Director. 24. There can be no question of public interest immunity as between the Police and the Director of Public Prosecutions. If the Director requires the Police to produce documents which the Police are in the opinion should be the subject of a public interest immunity claim, the Director can form an opinion about the correctness of that claim and, as the guidelines make clear, if the public interest in not disclosing information outweighs the public interest in proceeding to trial or continuing proceedings in someway, the Director can abandon the trial or the proceedings. 25. In my opinion, the Director of Public Prosecutions through his officers is obliged to form opinions as to whether documents exist and evidence exists that might bear upon a real question in proceedings, other than some matter that goes merely to credit. 26. Once it is clear that relevant material exists, it is the prosecution's duty to obtain that material, inspect it and determine whether that material should be produced to the accused or the offender. If a Police officer is of the belief that the material should not be produced to the accused or the offender, he should nevertheless produce it to the Director of Public Prosecutions and express his opinions as to why the material should not be made available to the accused/offender. 27. The prosecutor then, as the person responsible for conducting the proceedings should make a decision. If there is a legitimate dispute to be litigated, it should be litigated but by the Director and not by the Police. 28. In my opinion, the practice that has been followed for many years is wrong in principle and should be discontinued. 29. In my opinion, the Director of Public Prosecutions, knowing that material may exist that could bear upon legitimate matters concerning the sentence of the offender, has through his solicitor employee, Mr Allison, declined to make any enquiries on the basis that the matter has already been determined by the courts. In my opinion, that has not happened at all and the Director of Public Prosecutions is under an obligation to seek the material that is relevant to this issue, to examine it and to form an opinion. 30. Of course, it is for the Director to form an opinion as to whether there should be a disclosure. The notice of motion does not ask for the production of any documents, but asks merely that the Director get documents that obviously exist and form an opinion as to whether they should be disclosed. It is a very unusual application since it is made in circumstances where the offender has pleaded guilty to a serious offence. Nevertheless, there appears to be in existence material that may bear upon a very relevant question as to whether the offender was led into committing an offence or offences by Melanie Brown, either acting on her own behalf or acting as an agent for the Police. The only sanction I can impose, if the Director declines to seek any documents from the Police to enable him to form his view on these issues, is to grant a stay of proceedings and to consider granting bail." (Emphasis added) 49His Honour ordered (at [31]) a stay of proceedings until the DPP had sought and obtained the documents and formed an opinion as to their relevance to the sentence of the offender, had formed an opinion on whether those documents may be relevant to any matter of sentence of the respondent and had communicated that opinion to the respondent's legal adviser. 50As is apparent, the primary judge's orders did not grant the relief sought in the notice of motion, which was for disclosure of the materials relating to communications between the Police and Ms Brown, in the Police's possession, in relation to the investigation into the matters which are the subject of the charges against the respondent. It appears from paragraph [30] of his Honour's reasons that he thought the notice of motion merely asked the DPP to get the documents and form an opinion as to whether they should be disclosed. His Honour's misconception of the nature of the application clearly influenced his view in staying the proceedings. Neither the DPP nor the Attorney General suggested this misconception was material.

DPP/Attorney General's submissions 51Although the primary judge did not expressly refer to it, all parties and the Attorney General accepted that s 15A of the DPP Act was critical to the question of the police obligation, if any, to disclose, in the sense of physically produce to the DPP, any information which fell within the terms of the respondent's notice of motion. 52Both the DPP and the Attorney General submitted that the primary judge's findings and conclusions were tainted by error in a number of material respects, which were substantially the same. I shall summarise their submissions as if made collectively, even if one was not made by both. 53First, they argued that the primary judge erred in construing s 15A of the DPP Act as obliging the Police to disclose, as in physically produce, all relevant material to the DPP. They contended his Honour failed to consider the operation of the legislative regime surrounding disclosure of material to the DPP. They submitted that s 15A of the DPP Act required the Police to disclose the existence of the material, but not the material itself. They argued that a contrary interpretation of the provision would be inconsistent with the form contemplated of the Disclosure Certificate prescribed by the 2005 Regulation and the Disclosure Guidelines. They contended that the fact that both documents contemplated the Police disclosing the fact they held "sensitive relevant material" but that it was subject to a public interest immunity claim, was consistent with the practice where material the subject of a public interest immunity claim was withheld from the prosecution by the Police and the claim was dealt with by the courts. They argued that that practice was consistent with the fact that it was for the court, not the prosecutor, to determine a claim of public interest immunity. 54Secondly, taking up the last point, both criticised his Honour's statement (at [23]) that "[t]he Crown is one and indivisible in the State of New South Wales" to the extent that it appeared to underpin his Honour's conclusions (at [23]) that, in effect, the Police were subordinate to the DPP insofar as determining what evidence could be used in a prosecution and (at [24]) that "there can be no question of public interest immunity as between the Police and the Director of Public Prosecutions" and that it was for the DPP to form an opinion about the correctness of any public interest immunity claim. They emphasised the separation between the functions of the Police and the DPP. They submitted that the agencies that provided the DPP with information for the purposes of a prosecution were independent third parties with investigative functions whose interests necessarily differed and diverged from the DPP's. They pointed to s 7 - s 10 of the DPP Act as demonstrating that the DPP was a creature of statute with specified prosecutorial functions exercised on behalf of the Crown. They argued that that statutory structure demonstrated that there was no support for the proposition that a prosecutor had any duty or power to see that a claim to public interest immunity was ventilated before a court: see Director of Public Prosecutions (Victoria) v County Court of Victoria (1997) 98 A Crim R 270 (at 279). 55Thirdly, the DPP and the Attorney General submitted that, in any event, the primary judge's fundamental error was to assume that there was material in existence linking Ms Brown to the Police in circumstances where King DCJ and the Court of Criminal Appeal had been unable to reach that conclusion. They also complained that his Honour erred in concluding that such material was relevant to the respondent's culpability for the offences to which he had pleaded guilty. They contended that the respondent had not advanced the state of the evidence from that before King DCJ (and the Court of Criminal Appeal) on the question whether there was a legitimate forensic purpose to require the production of any further documents. 56Fourthly, they complained that the primary judge erred (at [8]) in that there was no evidence to support the inference that the Police had taken the view that "the documents that undoubtedly exist [are] not producible because of the decisions of Judge King and the Court of Criminal Appeal". Even if there had been a basis for that inference, they contended that that would have been a proper stance for the Police to have taken bearing in mind that both decisions established that the respondent had not demonstrated a legitimate forensic purpose to require the production of any documents pursuant to the subpoena considered in that case. 57Fifthly, they complained that his Honour erred (at [14]) in concluding that "that there could be no public interest in suppressing [Ms Brown's] name since it is publicly known" insofar as that finding appeared to found his conclusion that any claim for public interest immunity was confined to protecting disclosure of her name. 58Sixthly, they challenged the primary judge's assertion (at [15]) 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" and (at [17]) that the DPP hid behind the Police Disclosure Certificate. They submitted that Mr Allison's affidavit demonstrated that he was active in making enquires of the Police for the purposes of determining whether or not it was intended that any further material be produced. They contended that Mr Allison had been entitled to rely upon the Police Disclosure Certificate statement that there was relevant material, but that it was subject to a public interest immunity claim. In such circumstances they contended it would be a sterile and unnecessary exercise for the DPP to exercise his power under s 16 of the DPP Act (assuming that provision enabled him so to do) to ask the Police to provide the information: Director of Public Prosecutions (Victoria) v County Court of Victoria (at 281) per Ashley J. 59Seventhly, they submitted that the primary judge's orders had the effect of seeking to force the DPP to act outside the confines of his statutory functions. This was because the orders necessarily contemplated that the DPP would make the decision as to whether there was a public interest immunity claim independently of the Police decision. This, they argued, was not part of the Director's function and, further, would usurp the function of a court of competent jurisdiction in determining a claim for public interest immunity. Furthermore, they submitted that the exercise of the discretion to order a stay of proceedings was inappropriate when the public interest immunity issue had not been resolved. 60The effect of these errors, they contended, was that there was no basis for the primary judge's ultimate conclusion (at [29]) that "the Director of Public Prosecutions is under an obligation to seek the material that is relevant to this issue, to examine it" and (at [30]) "to form an opinion as to whether there should be a disclosure". 61Finally, they submitted that there could be no miscarriage of justice supporting the conclusion that a stay should have been granted in circumstances where the respondent could, and should, have taken the route of issuing a further subpoena to the Police requiring the production of documents to enable any resolution of the public interest immunity claim to be determined by a court. This was a factor, they argued, the primary judge should have taken into consideration in exercising his discretion. They also pointed to the fact that the Disclosure Guidelines contemplated that in the event that a claim for public interest immunity resulted in material not being able to be disclosed, then the matter was then referred to the DPP or the Deputy DPP to consider a number of issues, including whether or not in those circumstances the prosecution ought to proceed.

Respondent's submissions 62The respondent submitted that s 7 of the DPP Act made the DPP responsible for conducting prosecutions. He referred to the duty imposed on the prosecution at common law to disclose relevant material of which he was aware. He contended that that duty was not ousted by any provisions of the DPP Act, the 2005 Regulation or the Disclosure Guidelines. 63Secondly, he submitted that the reference to "disclose" in s 15A of the DPP Act should be read as meaning to "produce" and that the function of the Director in s 16(2) of "carrying on" proceedings included the duty to decide whether proceedings may be carried on in the sense of being "continued". He argued that s 16 demonstrated that the prosecutor's duty of disclosure was not restricted to documents in his possession but that he had overriding authority when it came to the conduct of prosecutions and access to material. 64Thirdly, the respondent referred to the Statement of Facts prepared by the DPP to be handed to the sentencing judge which, he submitted (without contradiction by the appellant) made no reference to the circumstances in which he was introduced to the UCO or Ms Brown. He argued that if Ms Brown acted on the instructions of the Police in creating a situation in which the respondent could commit an offence by introducing him to the UCO, that would be relevant to the objective seriousness of the offences to which he had pleaded guilty, the standard non-parole period for which is fifteen years imprisonment. 65In that light, the respondent contended that the DPP's failure to obtain all documents from the Police meant he had failed to discharge his common law duty of disclosure properly, resulting in an abuse of process and a miscarriage of justice such that it was proper for the primary judge to stay the sentencing proceedings. He submitted that the primary judge was correct to find that there could be no question of public interest immunity as between the Police and the DPP. 66Fourthly, the respondent argued that, in any event, the public interest immunity issue was a red herring which diverted attention from the real issue as to what the DPP should do in circumstances where he had not seen all relevant documents. 67Finally, the respondent submitted that if the DPP concluded that a claim of public interest immunity may preclude production of material relevant to his sentencing, the DPP may need to consider what action should be taken to protect his interests, including the appointment of a special counsel to make submissions in relation to documents or information to which the respondent was not privy or discontinuing the proceedings: see R v H; R v C [2004] UKHL 3; [2004] 2 AC 134 (at [22], [36]); State of New South Wales v Public Transport Ticketing [2011] NSWCA 60 (at [19] - [35]) per Allsop P (Hodgson JA and Sackville AJA agreeing).

Consideration 68It is uncontroversial that evidence of police entrapment is a mitigating factor relevant to sentencing proceedings: R v Taouk (1992) 65 A Crim R 387 (at 396 ff) per Badgery-Parker J (Clarke JA and Abadee J agreeing). After a careful analysis of authority, his Honour concluded that the effect evidence of entrapment would have in the sentencing context was: "... that even where the conduct of the police was regarded by the court as within the bounds of acceptable police procedures, nevertheless if there was a possibility that the offence might not have been committed had the police not in some way facilitated it, that might be regarded as a matter which diminished the culpability of the offender . In my view, the point at which, if at all, the court will intervene to mark its disapproval of conduct by police which goes beyond that which the community regards as acceptable is the point where an application is made to exclude evidence obtained by improper means. Such considerations have, in my view, little to do with sentencing where the fundamental task of the court is always to evaluate the criminality involved. The sentencing process is concerned with the level of culpability of the offender who, whether as a result of police incitement, inducement or encouragement or otherwise embarks upon criminal conduct . See also Dugan [1984] 2 NSWLR 554 where this Court rejected the submission that in a case where conduct by police facilitated but did not incite the commission of a crime, the sentence should be reduced to mark the court's disapproval of the police conduct." (Emphasis added) 69It is also uncontroversial that in order to gain access to documents held by the Police by issuing a subpoena the respondent would have to establish that the documents were sought for a legitimate forensic purpose and secondly, that "it is on the cards" that the documents will materially assist his case: Lipton v R (at [14]) per McClellan CJ at CL referring to R v Saleam [1999] NSWCCA 342 (at [11]) and Attorney General (NSW) v Chidgey [2008] NSWCCA 65; (2008) 182 A Crim R 536 (at [64]). 70In Attorney General (NSW) v Chidgey (at [65] - [67]) Beazley JA (with whom James and Kirby JJ agreed) explained the genesis of the expression "on the cards" in a passage which bears repetition: "65 The genesis of the expression 'on the cards' is to be found in the judgment of Gibbs CJ in Alister v R [1983] HCA 45; (1984) 154 CLR 404 at 414. In Alister , the High Court was concerned with a subpoena issued to the Australian Security Intelligence Organisation (ASIO) in the course of a criminal trial for conspiracy to murder and attempt to murder. The police (acting upon information provided by an informant) had been able to foil the conspiracy, which involved an intention to murder by exploding a bomb near the intended victim's home. The case was notorious - the accused members of Ananda Marga had been suspected of placing a bomb outside the Hilton Hotel in Sydney, in an attempt to kill the Prime Minister of India. The subpoena had required ASIO to produce all files and documents relating to the informant in respect of ASIO's investigation of Ananda Marga. The Attorney General for the Commonwealth objected to the production on security-based public interest grounds. 66 Gibbs CJ, at 414, noted that the applicants who had sought the production of the documents were not able to state whether or not the documents existed, or if they did, whether they were likely to assist the applicant's case. His Honour observed, however, that it was not unreasonable to believe that documents were in existence and that 'one would guess that any reports ... would be adverse to the applicants'. His Honour referred to the conflicting position in England as to the circumstances in which a court would inspect documents in a case where public interest immunity was claimed. It is necessary to set out that passage in full, in order to understand the context in which his Honour introduced the terms 'on the cards'. He said: 'Just as in the balancing process the scales must swing in favour of discovery if the documents are necessary to support the defence of an accused person whose liberty is at stake in a criminal trial, so, in considering whether to inspect documents for the purpose of deciding whether they should be disclosed, the court must attach special weight to the fact that the documents may support the defence of an accused person in criminal proceedings. Although a mere 'fishing' expedition can never be allowed, it may be enough that it appears to be 'on the cards' that the documents will materially assist the defence .' (Emphasis added) (Citations omitted) 67 It is both important and instructive to understand the manner in which Gibbs CJ saw this test operating at a practical level. He said, as a continuation of the passage just quoted: 'If, for example, it were known that an important witness for the Crown had given a report on the case to ASIO it would not be right to refuse disclosure simply because there were no grounds for thinking that the report could assist the accused. To refuse discovery only for that reason would leave the accused with a legitimate sense of grievance, since he would not be able to test the evidence of the witness by comparing it with the report, and would be likely to give rise to the reproach that justice had not been seen to be done.' " 71As her Honour pointed out (at [68]), Gibbs CJ's approach in Alister v R [1983] HCA 45; (1984) 154 CLR 404 has been consistently applied in this State.

Staying criminal proceedings 72A stay of criminal proceedings can only be justified when there is "a fundamental defect which goes to the root of the trial 'of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences' ": Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23 (at 34) per Mason CJ. There is no definitive category of extreme cases in which a permanent stay of criminal proceedings will be ordered: Dupas v R [2010] HCA 20; (2010) 241 CLR 237. 73The question of whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations, including the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice: Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378 (at 395 - 396); Darwiche v R; El-Zeyat v R; Aouad v R; Osman v R [2011] NSWCCA 62 (at [172]) per Johnson J (McClellan CJ at CL and James J agreeing). The touchstone in every case is fairness: Petroulias v R [2007] NSWCCA 154; (2007) 176 A Crim R 302 (at [17]) per Ipp JA (with whom Latham and Fullerton JJ agreed). 74The decision to grant a stay is a discretionary one which may only be set aside on appeal if there is an error of the nature of that referred to in House v R [1936] HCA 40; (1936) 55 CLR 499 (at 504 - 505), that is to say, if it is clearly wrong, where the judicial officer has acted upon a wrong principle, or taken extraneous or irrelevant matters into account or failed to give weight, or sufficient weight, to relevant considerations, or made a mistake as to the facts: Petroulias v R (at [11]).

The prosecution's duty to act fairly 75A Crown Prosecutor is bound, or under a duty, to call all available material witnesses. This is not a duty owed by the prosecutor to the accused which is imposed by some rule of law. Rather it forms part of a description of the functions of a Crown Prosecutor. It is an aspect of the general obligation imposed upon a Crown Prosecutor to act fairly in the discharge of the function which he or she performs in a criminal trial which is ultimately to assist in the attainment of justice between the Crown and the accused: Whitehorn v R [1983] HCA 42; (1983) 152 CLR 657 (at 674, 675) per Dawson J. 76In Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 Hayne J (with whom Gleeson CJ and Heydon J agreed) described the nature of criminal trials and the prosecutor's role in the following terms (footnotes omitted): "[71] A criminal trial in Australia is an accusatorial and adversarial process. In that process, prosecuting counsel has a role that is bounded by long-established duties and responsibilities. Those duties and responsibilities are summarised when it is said that '[t]he duty of prosecuting counsel is not to obtain a conviction at all costs but to act as a minister of justice'. In the Supreme Court of Canada, Rand J described the role of the prosecutor as being: '...not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings . [Emphasis added.] A central, even the central, element in that role is 'ensuring that the Crown case is presented with fairness to the accused' . [72] The prosecution case is to be presented in the context of an adversarial process in which each side 'is free to decide the ground on which it or he will contest the issue, the evidence which it or he will call, and what questions whether in chief or in cross-examination shall be asked'. But again, there are boundaries to that process. The choices that have been described are to be made 'subject to the rules of evidence, fairness and admissibility'. As Dawson J said in Whitehorn v R : 'A trial does not involve the pursuit of truth by any means. The adversary system is the means adopted and the judge's role in that system is to hold the balance between the contending parties without himself taking part in their disputations .' [Emphasis added.] It is not for the judge to attempt to remedy the deficiencies of a party's case. As was pointed out in Whitehorn , and earlier in Richardson , the judge will frequently lack the knowledge and the information that would be necessary to make a decision about whether and how any deficiency would be remedied. But it is for the judge to 'hold the balance between the contending parties'. It is for the judge to ensure that the trial is conducted fairly." (Emphasis in original) 77In R v Reardon (No 2) [2004] NSWCCA 197; (2004) 60 NSWLR 454 (at [46] ff) Hodgson JA set out, in reasons not essential to his judgment, a number of propositions dealing with the Crown's duty of disclosure: "[46] It has been said that the inequality of resources as between the Crown and the accused 'is ameliorated by the obligation on the part of the prosecution to make available all material which may prove helpful to the defence': McIlkenny (1991) 93 Cr App R 287 at 312. The content of that obligation has been considered in a number of English cases. [47] In R v Ward [1993] 2 All ER 577, the Court of Appeal asserted that, if in a criminal case the prosecution wished to claim public interest immunity for documents helpful to the defence, the prosecution is in law obliged to give notice to the defence of the asserted right so that if necessary the Court can be asked to rule on the legitimacy of this claim. This view was upheld and elaborated by the Court of Appeal in R v Davis [1993] 2 All ER 643, where it was qualified to the extent that it was said that in certain exceptional case an ex parte application could be made by the prosecution to the Court to rule on the question of public interest immunity. [48] In R v Keane [1994] 2 All ER 478, the Court of Appeal held that, subject to the question of public interest, the prosecution must disclose documents which are material; and it said that documents are material if they can be seen, on a sensible appraisal by the prosecution, (a) to be relevant or possibly relevant to an issue in the case, (b) to raise or possibly raise a new issue the existence of which is not apparent from the prosecution case, or (c) to hold out a real (as opposed to a fanciful) prospect of providing a lead on evidence going to either (a) or (b). This view was approved by the House of Lords in R v Brown (Winston) [1998] AC 367 at 376-7, with the comment that 'an issue in the case' must be given a broad interpretation. Category (c) makes it clear that the duty is not limited to matters that would be admissible in evidence. [49] However, in Brown it was also held that the duty did not extend to disclosing material relevant only to the credibility of defence (as opposed to prosecution) witnesses. [50] In R v Mills [1998] AC 382, it was held that the duty extended to disclosure of statements taken by the prosecution authorities from witnesses not called by the prosecution, and not merely to the disclosure of the identity of such witnesses. [51] The obligation of disclosure has been considered by the High Court of Australia in Grey v R [2001] 75 ALJR 1708, but in circumstances where the Crown conceded that disclosure should have been made, it was not necessary for the Court to say anything about the content of the obligation. This question is adverted to only in footnote 20 to para [30] of the judgment of Kirby J. In the dissenting judgment of Simpson J in this Court ((2000) 111 A Crim R 314), which was upheld by the High Court, reference is made to prosecution guidelines and Bar Rules rather than to the principles stated in the English cases. [52] There has been some discussion of the English cases in other States of Australia. R v Mills was distinguished in R v Reci (1997) 70 SASR 78, and its statement of principle was not adopted. However, in other respects the few Australian cases that have commented on the English cases have not suggested they are not applicable in Australia: see in particular R v Garofalo [1999] 2 VR 625 at [58]-[63], Easterday v R [2003] WASCA 69 at [194], [390]. [53] It was stated by the Victorian Court of Appeal in Cannon v Tahche (2002) 5 VR 317 that a prosecutor's duty of disclosure is ethical in nature and is a discretionary responsibility exercisable according to the circumstances as the prosecutor perceives them to be; and that it is a duty owed to the court and not one enforceable at law at the instance of the accused. However, this was said in rejecting a claim for damages for misfeasance in public office; and the Court acknowledged (at [58]) that a breach of that duty may amount to a material procedural irregularity producing a miscarriage of justice and a setting aside of a conviction. Accordingly, this case does not amount to any dissent from the English cases. [54] It is not necessary in the present case to determine whether all the principles stated in the English cases should be adopted here; but in my opinion, the principles stated in Keane and Brown should be taken as applying in New South Wales. [55] I note that we were referred to an argument against a wide interpretation of the Crown's duty of disclosure to the effect that such disclosure may induce an accused to tailor a false but convenient defence. In relation to that argument, I agree with the following passage from the judgment of Sopinka J of the Supreme Court of Canada in R v Stinchcombe 68 CCCA (3d) 1, at 7-8, quoted with approval by Lord Hutton in Mills , at 403: 'Refusal to disclose is also justified on the ground that the material will be used to enable the defence to tailor its evidence to conform with information in the Crown's possession. For example, a witness may change his or her testimony to conform with a previous statement given to the police or counsel for the Crown. I am not impressed with this submission. All forms of discovery are subject to this criticism. There is surely nothing wrong in a witness refreshing his or her memory from a previous statement or document. The witness may even change his or her evidence as a result. This may rob the cross-examiner of a substantial advantage but fairness to the witness may require that a trap not be laid by allowing the witness to testify without the benefit of seeing contradictory writings which the prosecutor holds close to the vest. The principle has been accepted that the search for truth is advanced rather than retarded by disclosure of all relevant material.' In my opinion, this argument does not justify a narrow approach to the duty of disclosure." As is apparent, the first paragraph of the Disclosure Guidelines is modelled on R v Keane [1994] 2 All ER 478; [1994] 1 WLR 746. 78Neither Barr nor Simpson JJ, who sat with Hodgson JA in Reardon (No 2), expressly agreed with his Honour's proposal (at [54]) that "the principles stated in Keane and Brown should be taken as applying in New South Wales". Simpson J (with whom Grove and Shaw JJ agreed) subsequently approved his Honour's statement as correctly encapsulating, for NSW, the prosecution's duty of disclosure: R v Spiteri [2004] NSWCCA 321; (2004) 61 NSWLR 369 (at [20]). 79Hodgson JA's statement of the relevant principles concerning the Crown's duty of disclosure was also approved in Cornwell v R [2010] NSWCCA 59 (at [210]) (per McClellan CJ at CL, Johnson J agreeing). Simpson J also referred (at [297]) with approval to his Honour's statement, then added: "298 A prosecuting authority will be expected voluntarily to disclose material in its possession that, 'on a sensible appraisal', can be seen to come within any of the three identified categories; it will be expected to produce, on request by an accused, or subpoena issued by the court, such material, if a legitimate forensic purpose' for requiring its production is demonstrated: Saleam v R (1989) 16 NSWLR 14. It is hardly necessary to say that if, 'on a sensible appraisal', material the subject of request or subpoena, not previously recognised as coming within any of the three categories, can be seen to do so, a 'legitimate forensic purpose' will have been demonstrated." 80Failure by the prosecution (which includes the police) to disclose all relevant evidence to an accused may, in some circumstances, require the quashing of a verdict of guilty: Grey v R [2001] HCA 65; (2001) 75 ALJR 1708; Mallard v R (at [17]) per Gummow, Hayne, Callinan and Heydon JJ. This is because a breach by the prosecutor of the duty to act fairly, with due regard to the interests of the accused, might amount to a material procedural irregularity in the trial producing a miscarriage of justice: Cannon v Tahche [2002] VSCA 84; (2002) 5 VR 317 (at [58]) per Winneke P, Charles and Chernov JJA. There is nothing, in my view, in either the DPP Act or the Disclosure Guidelines which would render inapplicable the common law principles concerning prosecutorial disclosure: cf Mallard v R (at [63]) per Kirby J. 81The obligation to disclose includes, in an appropriate case, an obligation to make enquiries: AJ v R [2011] VSCA 215 (at [22]) per Weinberg and Bongiorno JJA (Buchanan JA agreeing). 82As the Disclosure Guidelines make clear, the obligation to disclose is a continuing one. It clearly encompasses disclosing material relevant to sentencing proceedings.

The duty of disclosure and public interest immunity 83Much time was spent in argument on the question whether the primary judge's orders impermissibly impinged upon what was said to be, in effect, the conventional practice for dealing with public interest immunity claims. 84Public interest immunity is a doctrine of substantive law. It represents a fundamental immunity. It allows for the withholding of documents in a variety of circumstances where disclosure of the documents would harm the public interest. The balancing process applied in determining whether a claim for public interest immunity should be upheld requires that the public interest in confidentiality must be weighed against the public interest in disclosure: Whealy J in R v Baladjam (No 31 ) [2008] NSWSC 1453 (at [29]) applying Jacobsen v Rogers [1995] HCA 6; (1995) 182 CLR 572 (at 588 - 589). Section 130 of the Evidence Act invokes the same two stage process of analysis as the common law: State of New South Wales v Public Transport Ticketing (at [42] - [43]) per Allsop P (Hodgson JA and Sackville AJA agreeing). 85Public interest immunity is not a privilege, which may be waived by the Crown or by any party: Air Canada v Secretary of State for Trade (No 2) [1983] 2 AC 394 (at 436) per Lord Fraser; Cross on Evidence , LexisNexis, (at [27005]). A judge (or any litigant or witness) may raise the question whether a claim for public interest immunity should be made in relation to documents even if no objection on that basis is taken: Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1 (at 44) per Gibbs ACJ; (at 58 - 59) per Stephen J. 86However there is a substantial body of law which supports the proposition that where the prosecution is aware of material which would, or would possibly, be relevant to an accused's defence but is subject to a claim of public interest immunity, that fact should be disclosed to the accused. 87In R v Ward [1993] 2 All ER 577; [1993] 1 WLR 619, to which Hodgson JA referred in Reardon (No 2) (at [47]), the Court of Appeal (Glidewell, Nolan and Steyn LJJ) held (at 632) that the prosecution's duty at common law to disclose to the defence all relevant material required the police to disclose to the prosecution all witness statements and the prosecution to supply copies of such witness statements to the defence or to allow them to inspect the statements and make copies unless there were good reasons for not doing so. It also held that if the prosecution in a criminal case wished to claim public interest immunity for documents which would be helpful to the defence they were obliged to give notice thereof to the defence so that if necessary the court could be asked to rule on the matter. The Court accepted that it would be incompatible with a defendant's absolute right to a fair trial to allow the prosecution, who occupy an adversarial position in criminal proceedings, to be judge in their own cause on the asserted claim to immunity. Their Honours said (at 633): "Policy considerations therefore powerfully reinforce the view that it would be wrong to allow the prosecution to withhold material documents without giving any notice of that fact to the defence. If, in a wholly exceptional case, the prosecution are not prepared to have the issue of public interest immunity determined by a court, the result must inevitably be that the prosecution will have to be abandoned." 88Their Honours also held (at 633) that nothing in the Attorney General's guidelines for the disclosure of "unused" material to the defence in cases to be heard on indictment (see Practice Note (criminal evidence: unused material) [1982] 1 All ER 734) "could derogate in any way from the[se] legal rules". 89In R v Davis [1993] 2 All ER 643; [1993] WLR 613, to which Hodgson JA referred in Reardon (No 2) (at [47]), the Court of Appeal (as Hodgson JA said), upheld and elaborated on R v Ward . In particular, the Court of Appeal (Lord Taylor of Gosforth CJ, Owen and Curtis JJ) said (at 648): "The effect of R v Ward is to give the court the role of monitoring the views of the prosecution as to what material should or should not be disclosed and it is for the court to decide. Thus, the procedure described as unsatisfactory in R v Ward , of the prosecution being judge in their own cause, has been superseded by requiring the application to the court. This clearly gives greater protection to the defence than existed hitherto - indeed as much protection as can be given without pre-empting the issue. Although ideally one would wish the defence to have notice of all such applications, and to have sufficient information to make at least some representations, we recognise that, in a small minority of cases, the public interest prevents that being possible." 90In R v Keane , to which Hodgson JA referred in Reardon (No 2) (at [48]), in addition to the matters his Honour noted, the Court of Appeal (Lord Taylor of Gosforth CJ, Auld and Mitchell JJ) emphasised (at 483) that "ex parte applications are contrary to the general principle of open justice in criminal trials" and should not be adopted, save on the application of the Crown and only for the specific purpose of enabling the court to discharge its function in testing a claim that public interest immunity or sensitivity justifies non-disclosure of material in the possession of the Crown. 91As Hodgson JA pointed out ( Reardon (No 2) (at [52])) the few Australian cases that have commented on the English cases have not suggested they are not applicable in Australia. Of those cases, Easterday v R [2003] WASCA 69; (2003) 143 A Crim R 154 (at [194] ff, [390]), in particular, contains an extensive discussion by Steytler J (with whom Scott and Roberts-Smith JJ agreed) of the Crown's obligation of disclosure in the context of ensuring the right of an accused to a fair trial and the consequences of non-disclosure by the Crown. 92In R v Solomon [2005] SASC 265; (2005) 92 SASR 331 the accused complained on appeal, following his conviction by a jury of five counts of taking part in the sale of cocaine contrary to s 32(1)(d) of the Controlled Substances Act 1984 (SA), that incomplete disclosure by the prosecution led to a situation in which it came out before the jury that there was additional surveillance material about him and also led to his counsel asking questions in cross-examination of a police officer, which it was suggested, would not have been asked had complete disclosure been made. 93It emerged that the prosecutor had not been told by the police officers responsible for the investigation of the offences of the full extent of the surveillance of the accused and of others with whom he had contact. The consequence was that although a request was made to the Director for disclosure of all surveillance material, complete disclosure had not been made. Production of the material relevant to these issues had been sought by subpoena and again a claim of public interest immunity had been upheld: R v Solomon (at [104], [106], [111]). 94Doyle CJ (with whom Duggan and Sulan JJ agreed) said, in a passage not essential to his reasons: "112 It is not clear that the police breached their duty of disclosure. But I would have thought that, without undermining the claim of public interest immunity, a means could and should have been found of informing the defence that the question should not have been asked." 95His Honour concluded (at [115]) that there was no risk of a miscarriage of justice having arisen from what occurred, but added: "116 What happened in this case illustrates the importance of the police complying with their duty to ensure that the Director of Public Prosecutions is in a position to make appropriate disclosure to the legal representatives of the accused . It is not appropriate for the investigating officers, or their superiors, to make a decision that potentially relevant and disclosable material will not be disclosed, because there are or may be grounds for resisting that disclosure. That is a decision that should be made by the Director . If the Director makes that decision, the Director can then consider whether anything, and if so what, should be done to inform the legal representatives of the accused that there is material that is being withheld. What happened in this case illustrates the dangers associated with a failure by the police to provide the Director with all the information which should be provided. Almost at the end of the case counsel asked questions, based on the assumption of full disclosure, that could have led to answers causing a miscarriage of justice, and the need for the whole case to be heard again. The interests of justice, and the public interest in the efficient disposition of cases before the court, combine to require careful attention by the police to their duty to inform the Director adequately of all material that might have to be disclosed, leaving it to the Director to decide whether there are good grounds for withholding any material, and what should be done in that event ." (Emphasis added) 96In 2005 the Director of Public Prosecutions Act 1991 (SA) was amended to insert s 10A, subsection (a) of which is in substantially the same terms as s 15A of the DPP Act. Section 10A(3), however, expressly provides that the duty of disclosure under s 10A(1) "extends to material that would be exempt from production in court because it is protected by privilege or for any other reason". The amendment followed a long process of criminal-justice process reform explained in the second reading speech to the Statutes Amendment (Criminal Procedure) Act Bill which effected the amendment: South Australia House of Assembly, Parliamentary Debates (Hansard), 20 September 2005 (at 3465 ff). It is unnecessary to recount that history. In short, the amendment was effected independently of Doyle CJ's reasons in R v Solomon . 97The practice Doyle CJ recommended in R v Solomon appears to have been adopted in South Australia: see R v Andrews [2010] SASCFC 5; (2010) 107 SASR 471 per Gray J (with whom Vanstone J agreed). In that case, Gray J referred with approval (at [19]), inter alia, to R v Reardon (No 2) , R v Spiteri and Easterday v R as explaining the ambit of the prosecutor's duty of disclosure at common law. His Honour discussed the South Australian practice as follows: "[21] Where a claim of public interest immunity is asserted in relation to evidential material in the possession of the prosecution which falls prima facie to be disclosed, it is, the court was informed, the practice in this State for the Director of Public Prosecutions and not the police to determine whether such claim should be asserted. Upon the Director determining it to be appropriate to assert a claim of public interest immunity, it remains the duty of the court, not the privilege of the Executive, to determine whether evidential material should be produced or may be withheld in the public interest. [22] Where the Director does claim public interest immunity in relation to evidential material which would otherwise fall to be disclosed as a consequence of the prosecutor's duty, the court was informed that the practice in this State is for the Director to advise the defence of the existence of the material and its general nature without compromising confidentiality, and of the asserted right to withhold the material. If issue is taken, the matter may be the subject of determination by a court upon the return of a subpoena or other application. [23] Where a claim of public interest immunity is contested, the basis upon which the claim is made is usually supported by affidavit evidence setting out the grounds for the claim. The affidavit will not be disclosed if to do so will undermine the claim. Generally so much of it is disclosed as can be revealed without compromising the claim." 98The submissions made on behalf of the DPP/Attorney General that the stay order of the primary judge has the effect of forcing the DPP to usurp the role of the court in determining public interest immunity claims finds some support in Director of Public Prosecutions (Victoria) v County Court of Victoria . In that case, the accused sought a stay of proceedings on the basis that the DPP did not propose to call a witness, "Carlo" (presumably a pseudonym), at the trial. It is apparent that the stay was granted at a pre-trial stage. The Prosecutor conceded that "Carlo" was a relevant witness who would be called by the Crown in the ordinary course of events and conceded that not to call him may result in a degree of unfairness to the defendant. The Prosecutor had said that "Carlo" was not to be called. The Police would not disclose his name, status (undercover policeman or informer); nor had any proof of his evidence been provided to the Prosecutor. The Police had informed the DPP that the witness's identity would not be revealed as to do so would subject him to danger. 99The trial judge concluded (at 274) that it would be "manifestly unjust to allow the trial to proceed in a way in which it is proposed by the prosecutor" remarking that "[i]n this State, the conduct of criminal trials in a fair and proper manner is a responsibility of the DPP [whose] ... duty ... is to ensure that this takes place". The trial judge granted a stay until a further order. He contemplated (at 273) that the order would be lifted if, and when, the DPP ensured that all relevant evidence was placed before the Court, or "any necessary application" was made to the Court to dispense with such a requirement. 100The DPP sought an order in the nature of mandamus directing the County Court to continue the trial. Ashley J considered (at 278 ff) the ambit of the duty of the Crown to call all available witnesses. He observed that the authorities showed that the duty of a prosecutor to call relevant evidence was "one in respect of which he, and no-one else, must make any necessary decision", subject to trial or appellate remedial action. However he concluded (at 278 - 279) that: "...this is no warrant for saying that a prosecutor must - at the risk of a trial being, in substance, permanently stayed - obtain the name of and/or a statement from a possible witness; at least if the possible witness is a person whose identity is unknown to the prosecutor, and in respect of whose identity and whose statement (if any) a claim to public interest immunity - by reason of the person being either an undercover police officer or a police informer - has to the knowledge of the Prosecutor been foreshadowed...As a corollary, there is no warrant for saying that a prosecutor must seek information in connection with a foreshadowed claim to public interest immunity, and, if and when the information is provided, informally adjudicate upon the same before deciding what witnesses are to be called - failing which procedure the trial may be stayed. Any claim to public interest immunity is made to and is adjudicated upon by the court. It may be agreed that a prosecutor, confronted with a foreshadowed claim for public interest immunity, should consider whether evidence is available - absent evidence to which the likely claim relates - which gives reasonable prospect of a conviction being secured; evidence which may be led compatibly with the prosecutor's duty of ensuring that the Crown case is presented with fairness to the accused . Such consideration might lead to a decision not to continue with the prosecution. But it does not involve either an attempt to ascertain the likely content of evidence the subject of a foreshadowed claim to public interest immunity; or obtaining information pertinent to and informally adjudicated upon the merits of such a claim. The distinction between the prosecutor, on the one hand, and the person or authority which possesses information concerning an undercover policeman or police informer is a real one. The cases dealing with the consequences of a prosecutor not calling a witness have characteristically dealt with 'available' witnesses. Contrast the situation in (eg) Meissner where Carruthers J said (at 89) that the trial judge had 'appropriately observed that this was not a case where the Crown refused to call those persons but one in which the Crown was unable to call them'. The distinction is the more evident when it is considered that, most often, a claim to public interest immunity is made, not by the prosecutor, but by a third party - characteristically the Chief Commissioner of Police - in response to a subpoena whose purpose is to secure disclosure of the identity or statement or notes of an undercover police officer or police informer." (Emphasis added) 101His Honour also concluded (at 279) that "there is no support at all for the proposition that a prosecutor has at common law any duty or power to see that a claim to public interest immunity is ventilated before the court". His Honour could not understand by what mechanism it was said that the Director or the prosecutor could place such a claim before the court, it being "characteristic of such claims that they are raised not by the Crown, but by a third party, most often represented, in answer to some step taken by the accused person." His Honour concluded, accordingly, that the stay should not have been granted. He did contemplate (at 281), however, that the issue of public interest immunity would nevertheless arise in the course of the trial and be considered by the trial judge. 102It does not appear that Ashley J was referred to the English authorities considered in R v Reardon (No 2) . In my view Ashley J's reasons are inconsistent with the weight of authority to which I have referred concerning the duty of the police and prosecution to ensure a fair trial.

Conclusion 103The meaning of s 15A of the DPP Act is to be determined by reference to its context in the DPP Act as a whole, the existing state of the law when it was enacted and the mischief to which it was addressed: AB v State of Western Australia; AH v State of Western Australia [2011] HCA 42; (2011) 281 ALR 694 (at [10]) per French CJ, Gummow, Hayne, Kiefel and Bell JJ. 104In my view s 15A of the DPP Act obliged the Police to disclose, in the sense of produce, to the DPP the material concerning Ms Brown. This is apparent from the language of s 15A and contextual material. 105First, the ordinary meaning of the word "disclose" is to "to cause to appear; allow to be seen; make known; reveal: to disclose a plot" and "to uncover; lay open to view": Macquarie Dictionary Online . It is apparent from the s 15A obligation to disclose to the Director "all relevant information etc...that might reasonably be expected to assist the case for the prosecution or the case for the accused person", that the actual information which can be so described is to be provided so the prosecution may sensibly appraise whether such information should be disclosed to the accused. 106Section 7 of the DPP Act confirms the primary role the DPP plays in conducting prosecutions for indictable offences: see also Libke v The Queen (above at [76]). The DPP cannot effectively discharge that role unless he has actual access to all information relevant to an issue in the case. Section 15A was, in my view, enacted to facilitate his discharge of his role. Mere advice that the police hold relevant information without the DPP knowing what that information is undermines his ability to discharge his duty to act fairly, inter alia, towards the accused. As much is apparent from Mr Allison's affidavit which demonstrated that the DPP's ability to discharge his statutory duty was substantially constrained by the police refusal to provide to him "relevant sensitive information", referred to in the Police Disclosure Certificate. 107Secondly, s 15A is couched in the language conventionally used to describe the prosecution's duty of disclosure to an accused. As is apparent from the foregoing discussion, subject to any public interest immunity, that duty obliges the prosecution to make available, in the sense of disclose the contents of, all material which may prove helpful to the defence: R v Reardon (No 2) (at [46]). An anterior common law duty to disclose such material to the prosecution is imposed on the police as was explained in R v Solomon (at [116]); see also R v Ward . The second reading speech made it clear that s 15A was intended to reflect the common law obligation of police disclosure. It is unnecessary, having regard to that conclusion, to determine the scope of s 16 of the DPP Act. 108Contrary to the DPP/Attorney General's submission, neither the terms of the pro-forma Police Disclosure Certificate (which it will be recalled was made under the 2005 Regulation) or the Disclosure Guidelines can govern the construction of the DPP Act: Wallaby Grip Ltd v QBE Insurance (Australia) Ltd; Stewart v QBE Insurance (Australia) Ltd [2010] HCA 9; (2010) 240 CLR 444 at [21] per French CJ, Gummow, Hayne, Heydon and Kiefel JJ; see also Chief Commissioner of State Revenue v Hayson Group of Companies Pty Ltd [2006] NSWCA 233; (2006) 68 NSWLR 254 (at [36] - [38]) per Basten JA (Hodgson and Tobias JJA agreeing). 109Further, in my view, the pro forma Police Disclosure Certificate is invalid to the extent that it departs from the language of s 15A and purports to enable the Police to withhold relevant material from the DPP. Section 37 of the DPP Act (the regulation-making power) does not authorise the making of regulations which extend the scope or general operation of, or are inconsistent with, or depart from or vary the plan which the legislature has adopted to attain its ends in the DPP Act: Shanahan v Scott [1957] HCA 4; (1957) 96 CLR 245 (at 250). Nor does s 13 of the DPP Act authorise the DPP to furnish guidelines inconsistent with the DPP Act: see generally Foster v Aloni [1951] VLR 481. 110The Police could, if they wished when producing the material, inform the DPP that they wished to claim public interest immunity for it, but the DPP is obliged to form his own view about whether the material is relevant to an issue in the case and so advise the respondent including, where applicable, advising him of any claim of public interest immunity. The question of the indivisibility of the Crown, onto which the DPP/Attorney General claimed the primary judge's order entrenched, is irrelevant in circumstances where s 15A required the Police to disclose the actual material to the DPP. 111I do not understand the primary judge's orders to have had the effect of forcing the DPP to act outside the confines of his statutory functions. Those functions include determining what evidence is relevant both to the Crown and the defence case and, where appropriate, whether such evidence might be subject to a claim of public interest immunity. Nothing in the primary judge's order precluded the DPP during his independent consideration, from taking the Police view on that issue into account. However he had to determine the force of any such view after inspecting the documents. Whatever view he did form was clearly not determinative. Any final decision could only be made by a court upon proper application. In any event, the vice of the DPP determining whether evidence might be subject to a claim of public interest immunity is not apparent. The DPP undertakes that task in South Australia at least: R v Andrews ; see also R v Ward ; R v Davies ; R v Solomon. 112I return to the complaints about the primary judge's exercise of his discretion. In my view the DPP/Attorney General have not demonstrated any error in the sense referred to in House v The King which would warrant interference with his Honour's orders. 113First, I do not accept that the primary judge made a fundamental error in inferring there was material in existence that linked Ms Brown and the Police investigation. 114I would take into account in this respect the manner in which Gibbs CJ in Alister v R (at 414) explained the operation of the "on the cards" test. His Honour emphasised that "the scales must swing in favour of discovery if the documents are necessary to support the defence of an accused person whose liberty is at stake in a criminal trial ...". He contemplated that discovery should not be refused "simply because there were no grounds for thinking that [a] report could assist the accused" because to do so would leave the latter with "a legitimate sense of grievance". I accept that Gibbs CJ's propositions were based on the premise that it would be sufficient to activate the operation of these propositions if it was "not unreasonable to believe the documents were in existence" and that "one would guess that ... [they] would be adverse to the applicants": Chidgey (at [66]) per Beazley JA. For the reasons that follow, such an inference was available in this case. 115The notice of motion sought a stay until material relating to Ms Brown was disclosed. As I have explained, the combined effect of the tender of the pre-conference disclosure certificate and paragraph 7 of Mr Allison's affidavit was that the substance of the Police Disclosure Certificate was before the primary judge. It was a reasonable inference from those materials and the terms of the pro-forma Disclosure Certificate that the police accepted the "relevant sensitive material ..." to which Mr Allison referred "might reasonably be expected to assist in the case for the prosecution or the case for the accused person". That demonstrated sufficiently in my view that it was "on the cards" (assuming that test to be applicable for the purposes of the respondent's notice of motion) that the Police hold information relevant to Ms Brown and that it is at least "possibly relevant" ( R v Keane ) to an issue in the respondent's case, albeit that it might be subject to a privilege claim. 116The factual position differs from that with which King DCJ and the Court of Criminal Appeal dealt. It will be recalled that McClellan CJ at CL was of the view (at [19]) that the "conjunction of circumstances" he had outlined (at [16]) "raise[d] a suspicion that Ms Brown may have had a relationship with the investigating police", however absent evidence from the respondent concerning Ms Brown's role formed the view that he had not "established that it was 'on the cards' that the documents the subject of objection would assist his case". It was not, in my view, in the different factual matrix of this case, incumbent upon the respondent to give evidence of the sort to which McClellan CJ at CL referred. Here the Court is aware that the Police have acknowledged they hold material which "might reasonably be expected to assist in the case for the prosecution or the case for the accused person". Prima facie (subject to any privilege claim), the respondent should have access to that material to determine its utility in the sentence proceedings. To determine otherwise would leave him with a legitimate sense of grievance: cf Alister v R (at 415 - 416). 117Further, Mr Moustacas's letter of 22 October 2009 expressly referred to the respondent claiming he "was enticed into dealing with a large commercial quantity of each drug ... at the instigation of Brown who was clearly acting on behalf of the police". That letter appears to have been admitted without objection before the primary judge. It accordingly has somewhat more evidentiary weight that the mere statement in counsel's submissions in the subpoena proceedings: Lipton v R (at [16]). 118Secondly, the respondent's complaints concerning Mr Allison's failure to enquire of the Police were sound. His omission in this respect was based on the misconception that s 15A of the DPP Act required the Police to disclose the existence of material relevant to the respondent's case, but not the material itself. Rather, as I have explained, Mr Allison should not have been put in the position of having to inquire of the Police. The Police were not entitled to withhold that information. 119In my view the primary judge did not err in concluding that a stay was necessary to allay a potential miscarriage of justice. Mallard v R confirms that there may be a miscarriage of justice whether it is the police or the DPP who fail to disclose material relevant to an issue in criminal proceedings to the accused. The plurality was not concerned with whether the Western Australian DPP had had possession of the non-disclosed material. It was sufficient to establish a miscarriage of justice that the investigating police had had it prior to (and during) the trial and it had not been disclosed to the accused: Mallard v R (at [16]). Further, both the plurality ( Mallard v R (at [17])) and Kirby J (at [66]) referred with approval to Grey v R in which it was held (at [23]) that there was no reason why the defence in a criminal trial should be obliged to fossick for information to which it was entitled. That was, prima facie, the effect the attitude of the Police and the DPP was having in this case. 120Finally, I would observe that the primary judge did not grant a permanent stay of the proceedings, merely one conditioned on the DPP obtaining the material referred to in the Police Disclosure Certificate, forming the views referred to in his order and communicating that advice to the respondent. It was a matter for the respondent then to determine how to proceed. It was appropriate for his Honour to grant a conditional stay in those circumstances to ensure fairness to the respondent, to maintain public confidence in the administration of justice and to avoid a potential miscarriage of justice.

Orders 121I would dismiss the appeal. 122RS HULME J: In this matter I have had the advantage of reading the Reasons for Judgment of McColl JA. I agree with the order proposed by her Honour, with her Honour's account of the history of the proceedings leading to the present appeal and with that part of her Honour's Reasons as follows the sub-heading "Conclusion". 123Section 15A(1) of the Director of Public Prosecutions Act 1986 provides, inter alia, "Police Officers investigating alleged indictable offences have a duty to disclose to the Director all relevant information, documents or other things obtained during the investigation..." 124While I can accept that it is possible to disclose a document, that is its existence, without revealing all the detail of its contents, I do not see how it is possible to disclose "all relevant information" without revealing the content of that information, including the content of any documents. And while it may be that from time to time there is information that the police, with perfectly proper motives, do not wish to disclose, at least in detail, to the DPP (and the DPP may wish not to see), Parliament has dictated what must occur. If the result is inconvenient, it is a matter for Parliament to change. 125There is nothing in the remaining parts of McColl JA's reasons with which I disagree. However I have refrained from endorsing them because I regard the matters with which I have expressed agreement as sufficient to dispose of the appeal and thus have not found it necessary to repeat the very considerable amount of work her Honour must have engaged in to write those remaining parts. 126HISLOP J: I agree with McColl JA.

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: 17 November 2011