Lipton v R - [2010] NSWCCA 175

New South Wales
Court of Criminal Appeal

CITATION: Lipton v R [2010] NSWCCA 175

HEARING DATE(S): 21 June 2010

JUDGMENT DATE:
9 August 2010

JUDGMENT OF: McClellan CJatCL at 1; Hislop J at 25; Barr AJ at 26

DECISION: 1. Application dismissed.
2. Applicant ordered to pay respondent's costs.

CATCHWORDS: CRIMINAL LAW - whether District Court judge erred in concluding there was a lack of evidence in support of a legitimate forensic purpose by the applicant in the form of a subpoena seeking production and access - failure by applicant to place material evidence before the court in establishing it was on the cards that the documents sought would assist the applicant's case

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985

CASES CITED: Attorney-General (NSW) v Chidgey [2008] NSWCCA 65; (2008) 182 A Crim R 536
Principal Registrar of the Supreme Court v Tastan (1994) 75 A Crim R 498
R v Saleam [1999] NSWCCA 342
Taouk v R (1992) 65 A Crim R 387

PARTIES: Richard Lipton (applicant)
Commissioner of Police (respondent)
Director of Public Prosecutions

FILE NUMBER(S): CCA 2009/78658

COUNSEL: P S Hastings QC (applicant)
M A Wigner SC/R Regattieri (respondent - Commissioner of Police)
N Gouda (Director of Public Prosecutions)

SOLICITORS: James A Moustacas & Co (applicant)
NSW Crown Solicitor's Office (respondent - Commissioner of Police)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2009/78658

LOWER COURT JUDICIAL OFFICER: King DCJ

LOWER COURT DATE OF DECISION: 9 April 2010

2009/78658

McCLELLAN CJ at CL
HISLOP J
BARR AJ
MONDAY 9 AUGUST 2010

LIPTON, Richard v R

Judgment

1 McCLELLAN CJ at CL: The applicant pleaded guilty in the District Court to two charges of supplying large commercial quantities of a prohibited drug contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. He is currently awaiting sentence.

2 The applicant was arrested and charged on 21 May 2009 following a number of transactions during which he supplied cocaine and MDMA to an undercover police officer. Throughout the period when the transactions were conducted the applicant was in a personal relationship with Ms Melanie Brown with whom, so he has instructed his counsel, he had many discussions in relation to his drug dealings with the undercover officer. The applicant has indicated that he now believes that at that time, Ms Brown was collaborating with the police.

3 The applicant has issued a subpoena in his sentencing proceedings seeking access to records of the Police Service relating to Ms Brown’s dealings with the police. The Commissioner of Police successfully objected to the production of some of the documents sought by the subpoena because, so it was submitted in the District Court, there was the lack of a legitimate forensic purpose. A claim was also made for public interest immunity.

4 Paragraphs 2 and 4 of the schedule to the subpoena are in the following terms:

2. All statements made in relation to the said matter (the investigation of the applicant) in relation to Melanie…

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.

Continue reading Lipton v R

Details

AGLC: Lipton v R [2010] NSWCCA 175
Case: [2010] NSWCCA 175
Decision Date: 9 August 2010

CaseChat Overview and Summary

The applicant, Lipton, appealed against his conviction for possessing an unauthorised prohibited weapon. The case involved a subpoena seeking the production and access of documents from a police officer. The District Court had ruled that there was insufficient evidence to support the issuance of a subpoena, which the applicant challenged. The Court of Appeal assessed whether the District Court judge correctly concluded there was a lack of evidence supporting a legitimate forensic purpose by the applicant in the form of a subpoena.

The primary legal issue was whether the District Court judge was correct to determine that there was no evidence to support the issuance of the subpoena. The applicant argued that the District Court judge erred by concluding there was a lack of evidence to support a legitimate forensic purpose. The applicant contended that the documents sought were necessary for the applicant's case. The Court of Appeal needed to determine whether the District Court judge correctly exercised his discretion in rejecting the application for the subpoena.

The Court of Appeal found that the District Court judge correctly concluded that the applicant had not placed material evidence before the court to establish that the documents sought would assist the applicant's case. The applicant failed to provide sufficient evidence to demonstrate that the documents sought were necessary for the applicant's case. The Court of Appeal held that the District Court judge was not incorrect to conclude that there was a lack of evidence to support the issuance of the subpoena. The applicant's appeal was dismissed.

The Court of Appeal dismissed the applicant's appeal against his conviction for possessing an unauthorised prohibited weapon. The Court of Appeal held that the District Court judge correctly exercised his discretion in rejecting the application for the subpoena. The applicant failed to place material evidence before the court to establish that the documents sought would assist the applicant's case. The Court of Appeal found that the District Court judge was not incorrect to conclude that there was a lack of evidence to support the issuance of the subpoena.

Orders