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Attorney General (NSW) v Lipton

Attorney General (NSW) v Lipton

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Case Copied 20 July 2012 42 min read

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Attorney General (NSW) v Lipton [2012] NSWCCA 156
Hearing dates: 25 May 2012
Decision date: 20 July 2012
Before: Basten JA at [1];
Hoeben JA at [70];
McCallum J at [71]
Decision:
(1) Set aside any order made by Finnane DCJ in the District Court at the time of or consequent upon the judgment delivered on 24 February 2012 requiring the Commissioner of Police to produce and permit the respondent to have access to documents pertaining to the relationship between police and Ms Melanie Brown.
(2) Direct that if such documents are in the custody of the Court, they be returned to the Commissioner of Police.
(3) Direct that any further application for production of such documents be made by way of a fresh subpoena issued for that purpose.

Catchwords:
APPEAL - criminal - appeal against interlocutory judgment or order - ruling with respect to admissibility of evidence not a judgment or order - whether ruling on objection to production of documents in answer to subpoena is amenable to appeal - Criminal Appeal Act 1912 (NSW), s 5F; Evidence Act 1995 (NSW), s 131A

EVIDENCE - public interest immunity - whether party called to produce material not the party asserting public interest immunity - discussion of State of New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60; Derbas v R [2012] NSWCCA 14 - Evidence Act 1995 (NSW), ss 130 and 131A
EVIDENCE - public interest immunity - offender sought material relating to conduct of suspected informer for use at sentencing hearing - whether public interest immunity capable of being overcome for the purposes of sentencing - whether appellate court is in a position to perform requisite balancing exercise - whether offender demonstrated a real and not hypothetical issue with respect to sentence - Evidence Act 1995 (NSW), s 130
Legislation Cited: Criminal Appeal Act 1912 (NSW), s 5F
Evidence Act 1995 (NSW), ss 130, 131A
Cases Cited: Alister v The Queen [1984] HCA 85; 154 CLR 404
Attorney General (NSW) v Chidgey [2008] NSWCCA 65; 182 A Crim R 536
Attorney General v Kaddour [2001] NSWCCA 456
Attorney General (NSW) v Stuart (1994) 34 NSWLR 667
Cain v Glass (No 2) (1985) 3 NSWLR 230
D v National Society for the Prevention of Cruelty to Children [1978] AC 171
Derbas v R [2012] NSWCCA 14
Lipton v R [2010] NSWCCA 175
Marconi's Wireless Telegraph Co Ltd v The Commonwealth [No 2] [1913] HCA 19; 16 CLR 178
Marks v Beyfus (1890) 25 QBD 494
Nagi v Director of Public Prosecutions (NSW) [2009] NSWCCA 197
R v Fandakis [2002] NSWCCA 5
R v Lipton, Richard [2010] NSWDC 187
R v Richard Lipton (No 2) [2010] NSWDC 295
R v Steffan (1993) 30 NSWLR 633
Regina v Richard Lipton [2011] NSWCCA 247
Sankey v Whitlam [1978] HCA 43; 142 CLR 1
State of New South Wales v Public Transport Ticketing Corporation [2011]…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] NSWCCA 156
Decision Date: 20 July 2012

CaseChat Overview and Summary

The case of Attorney General (NSW) v Lipton involved an appeal against an interlocutory order in a criminal matter. The applicant, Lipton, sought to appeal a ruling concerning the admissibility of evidence. Specifically, the issue was whether the objection to producing documents in response to a subpoena could be appealed under the Criminal Appeal Act 1912 (NSW). The court had to determine if this ruling constituted a judgment or order that could be the subject of an appeal.

The primary legal issue before the court was whether the objection to the production of documents in response to a subpoena was amenable to appeal. Additionally, the court had to examine the application of the public interest immunity principle in the context of the Evidence Act 1995 (NSW). The appellant sought material related to the conduct of a suspected informer for use at a sentencing hearing, raising questions about whether public interest immunity could be overcome for sentencing purposes. The court also considered whether the appellate court could perform the necessary balancing exercise and whether the appellant had demonstrated a real and not hypothetical issue concerning the sentence.

The court held that the objection to the production of documents in response to a subpoena was not an appealable interlocutory judgment or order under the Criminal Appeal Act 1912 (NSW). It further determined that the principle of public interest immunity was not applicable since the party called to produce the material was not the party asserting the immunity. The court also found that the appellate court was not in a position to perform the requisite balancing exercise to overcome public interest immunity for sentencing purposes. The appellant had not demonstrated a real and not hypothetical issue concerning the sentence. As a result, the appeal was dismissed.

The final order of the court was that the appeal against the interlocutory order was dismissed, and no further appeal was permitted concerning the admissibility of the evidence in question.

Orders