R v Lawrence & Mcdonagh - [2006] SADC 61

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v LAWRENCE & MCDONAGH
[2006] SADC 61
Reasons for Decision of His Honour Judge Barrett
9 June 2006
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE
Subpoenas to Commissioners of Police for South Asutralia and New South Wales and Telstra seeking production of documents and telephone intercepts which would disclose whether individuals were informants or undercover police officers - whether legitimate forensic purpose - whether public interest immunity protects disclosure of role of individuals though not their names - whether illegality of intercepts prevents absolutely their disclosure under the Telecommunications (Interception) Act 1979 - held legitimate forensic purpose in disclosure but disclosure protected by public interest immunity - held prohibition in Telecommunications (Interception) Act absolute.
Criminal Law (Undercover Operations) Act 1995, referred to.
Alister v The Queen (1984) 54 CLR 404; Hirst v The Police (No 2) [2005] SASC 480; Ridgeway (1995) 184 CLR 19; Soct v Jones [2003] NSWSC 169; Hunt v Russell (1995) 63 SASR 402; R v Polley (1997) 68 SASR 227; R v Saleam (No 2) [1999] NSWCCA 86; Carol v Attorney General of NSW (1993) 70n A Crim R 162; Attorney General for NSW v Stewart (1994) 34 NSWLR667; Hunt v Wark and Ors (1986) 40 SASR 489; Antionios Mokbel [2005] VSC 410; Gee v Magistrates Court of South Australia and Ano (2004) 89 sasr 534; Mason (2000) 77 SASR 105; Medical Board of SA v Fisher (2000) 76 SASR 242; Adelaide Brighton Cement v South Australia (1999) 75 SASR 209, considered.

R v LAWRENCE & MCDONAGH
[2006] SADC 61

This is an application by the Commissioner of Police for New South Wales (the first applicant) to have set aside a subpoena dated 21 September 2005 issued at the request of the two accused. Mr Hoy appeared for the Commissioner. The Crown Solicitor, Mr Stretton, with Ms Fuda, on behalf of the Commissioner of Police for South Australia, made an oral application to have set aside an almost identical subpoena, also dated 21 September 2005, addressed to the Commissioner of the South Australian Police. Mr Stretton also appeared for the Attorney General of South Australia, making an oral application to have set aside a subpoena of the 21 September 2005 addressed to Telstra. Mr ML Abbott QC, with Mr CSL Abbott, appeared for Lawrence and objected to the oral application of Mr Stretton. Mr T Dibden appeared for the second named accused, Mario Trevor McDonagh. He joined in all the arguments made on behalf of Lawrence. He adopted Mr Abbott’s arguments.
I overrule Mr Abbott’s objection to my entertaining the applications made by Mr Stretton. It is clear that the accused have been on notice for some time that the South Australian Police Commissioner and the South Australian Attorney General would both be applying to set aside the subpoenas in which they have an interest. Mr Abbott pointed to no prejudice suffered by his client…

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 R v Lawrence & Mcdonagh

Details

AGLC: R v Lawrence & Mcdonagh [2006] SADC 61
Case: [2006] SADC 61
Decision Date: 9 June 2006

CaseChat Overview and Summary

The case involved two respondents, Lawrence and Mcdonagh, who were seeking to challenge subpoenas issued to the Commissioners of Police for South Australia and New South Wales, as well as Telstra, requesting the production of documents and telephone intercepts. The subpoenas aimed to determine whether certain individuals were informants or undercover police officers. The primary question before the court was whether these documents and intercepts could be disclosed for a legitimate forensic purpose, whether public interest immunity could protect the disclosure of the roles of individuals without revealing their names, and whether the illegality of the intercepts under the Telecommunications (Interception) Act 1979 would prevent their disclosure.

The court examined the legitimacy of the forensic purpose behind the subpoenas and concluded that the purpose was indeed legitimate. However, it also found that public interest immunity applied to protect the disclosure of the roles of individuals, even though their names would not be revealed. Furthermore, the court held that the prohibition on disclosure under the Telecommunications (Interception) Act was absolute. Consequently, the subpoenas could not compel the production of the documents and intercepts in question.

In summary, while the court recognised the validity of the forensic purpose behind the subpoenas, it ruled that public interest immunity and the absolute prohibition under the Telecommunications (Interception) Act prevented the disclosure of the documents and telephone intercepts sought by Lawrence and Mcdonagh. The court's decision ultimately upheld the protection of the roles of the individuals involved, barring their disclosure.

Orders