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

1. 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. 

2. 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 by my entertaining those applications.  An outline of argument for the Attorney General was filed as early as 14 December 2005 and it seems always to have been understood that the Police Commissioner would also be seeking to have the subpoenas set aside.

3. The considerations raised by the applications are first that the accused must demonstrate they have a legitimate forensic purpose in inspecting the documents sought by the subpoenas (Alister v The Queen[1] and Hirst v The Police[2]).  If no legitimate forensic purpose can be demonstrated then the applications to set aside will succeed.

   [1] (1984) 54 CLR 404

   [2] (No 2) [2005] SASC 480 per Gray J at [17]-[20]

4. The second stage occurs if, and only if, a legitimate forensic purpose has been demonstrated.  In that event, inspection will be granted unless the applicants can make out public interest immunity in the materials.

5. I will later refer to an intermediate question.

6. The applicants assert first that the accused have no legitimate forensic purpose in inspecting the documents.  Second, if they do, then the materials are protected by public interest immunity.

7. Those being the issues before me there seemed to be a forensic logic in the accused making first their submissions in support of their contention that they have a legitimate forensic interest in the documents.  Mr Abbott agreed to lead off presenting his arguments on that topic.  I gratefully accepted his offer to provide a background to the proceedings at the outset.

   Background

8. The accused are charged with three counts of selling the drug colloquially known as “fantasy”, and one count of producing it.  The three sales are alleged to have occurred as follows:

9. The first between 2 and 8 August 2002, the second between 20 and 27 August and the third between 6 and 12 September.

10. The accused were arrested on 12 September 2002.  Documents already produced to the accused demonstrate that three men identified as Pedro, Tony and Albert had connections with, inter alia, the accused Adam Lawrence.  It is known that Albert was an undercover police officer working as part of a covert operation named “Cottesmore”.  The operation was authorised pursuant to the Criminal Law (Undercover Operations) Act 1995 from 27 December 2001.  The accused claim to know the identity of, and to have met and spoken to, Pedro.  They know nothing about Tony.  Documents suggest that the first contact the accused, Adam Lawrence, had with the authorities was via Pedro and Tony.  The terms of the undercover operation were amended on 12 February 2002 to permit the operation to target the accused for the first time.  In other words Mr Lawrence was not a target until 12 February 2002.  That approval was evidenced by the document behind “Tab 2” in the accused’s documents.

11. Behind Tab 15 is an addendum to the approval of the undercover operation authorising Albert to take part in the operation.  An excerpt from his statement of witness behind Tab 17 implies he was first briefed for his participation on 24 July 2002.  In an excerpt from a controller log sheet dated 2 August 2002 behind Tab 19 there is a note of the briefing of Albert.  It refers to an enquiry about “further purchase” of the drug fantasy.  It is argued that the reference to the word “further” suggests that there had been some purchase before the 2 August.  That does not of course mean that it was an earlier purchase by Albert.  It is this suggested earlier involvement by the authorities that the applicants seek to have disclosed.  They seek the production of documents relating to the activities of Pedro, Tony and Albert between the period when the applicant became a target in February 2002 and August 2002 when there was an explicit authorisation for Albert to take part in the operation.  By the way in which the subpoenas are expressed the applicants want to know, not the identity of any of the three named men, but what was their status and what activities relating to the accused did they engage in.  As mentioned early the word “further” in the controllers log sheet suggests transactions or activities before Albert’s admitted involvement on 2 August.

12. One matter raised by the respondents, and upon which I will have to rule, is whether the telephone intercepts referred to by the applicants can be used in the present application.  I am told that those intercepts were ruled inadmissible by Dr  Cannon, the presiding Magistrate at the committal, on the basis that the telephone intercepts were illegally obtained.  The reason for that was that the enquiry involved the drug “fantasy” which, at that time, was not a drug identified as one which could be the subject of authorised telephone intercepts.  The relevance of the telephone intercepts to this inquiry is that the transcripts, of some of them, relate to conversations, in code, between Pedro and Tony and the accused in June and July 2002.  Those conversations suggest a sale involving the accused before the first one charged against them on 2 August 2002.  A telephone call between Albert and Adam Lawrence’s now deceased brother Mark on 2 August 2002 (Tab 20) is said to suggest Albert’s involvement in a sale earlier than the date of his first involvement on 2 August.  I will return to the discrete topic of the admissibility of the telephone calls later.

13. One further matter by way of background is a ruling by Judge David on 19 November 2004.  His Honour was dealing with earlier subpoenas issued by the accused.  Claims of public interest immunity were made.  His Honour ruled on some twenty identified documents, ordering the production of some and immunity from production of others.  The subpoenas I am considering were issued about 10 months after that ruling.  They relate to different materials.

14. I have heard oral submissions on the applications and have received and considered supplementary written submissions from counsel for the accused dated 3 May 2006 and from the Crown Solicitor dated 15 May 2006.

    Submissions by Accused on Legitimate Forensic Purpose

15. Mr Abbott argues that on the material produced there is a suggestion that Pedro, Tony and Albert were involved in a drug transaction or transactions before Albert was authorised to work as an undercover agent.  It is argued that this raises the question of whether Albert was engaged in illegal activity before he was authorised to do so.  The defence does not know whether Tony was an informant or an authorised undercover agent.  That raises the question of whether his actions were authorised in any way.  Although Mr Abbott said that the identity of Pedro is known, he did not disclose whether the defence explicitly knew whether Pedro was authorised as an undercover agent or was an informer, or whether he was neither.

16. Mr Abbott argues that the relevance of the Telstra subpoena is to establish details of the telephone calls between his client and Pedro, Tony or Albert.  With regard to the New South Wales and the South Australian Police subpoenas, the purpose is to establish what involvement the three named people had with the accused and on what authority, if any, that involvement occurred.  It is said that this will be of value in cross-examination of the police witnesses who have refused to answer questions at the committal proceedings directed to the earlier involvement.  The answer to these questions will be relevant to the question of whether the so called entrapment of the accused by legal or illegal means.  The consequence of illegality may be either the exclusion of evidence or the stay of proceedings as an abuse of process of principles similar to those laid down by the High Court in Ridgeway[3].

    [3] (1995) 184 CLR 19

17. As indicated earlier, Mr Dibden for McDonagh joined in the submissions made by Mr Abbott on behalf of Lawrence. 

    Submissions by the New South Wales Commissioner for Police on Legitimate Forensic Purpose

18. Mr Hoy submitted that the accused bear the onus of establishing the subpoena has a legitimate forensic purpose (Scott v Jones[4] and also Hunt v Russell[5]).

    [4] [2003] NSWSC 169 at [31]-[33]

    [5] (1995) 63 SASR 402 at 409

19. The accused must establish that it is “ on the cards” that the documents or material will assist his case (Alister v The Queen[6], R v Polley[7] and R v Saleam (No 2)[8]).  Mr Hoy submitted that there was nothing to suggest that there is a properly arguable basis for concluding that information about Pedro or Tony would support the defence argument for the exclusion of evidence nor for any other arguable defence.  He suggested that the inquiry was still at the speculative or “fishing” stage and that is insufficient to make out a legitimate forensic purpose (Hunt v Russell[9])  Mere relevance is not enough.  The party must be able to indicate that the document is relevant in a sense that it may assist its case (Carol v Attorney General for NSW[10]).  I accept the submission that material upon which I base the inquiry into a legitimate forensic purpose does not include inspection of the documents sought to be produced (Attorney General for NSW v Stewart[11])

    [6]  (1984) 54 CRL 404 at 414 per Gibbs CJ

    [7] (1997) 68 SASR 227 at 245 per Mullighan J and 237 per Prior J

    [8] [1999] NSWCCA 86 at [11]

    [9] (1995) 63 SASR 402 at 407

    [10] (1993) 70 A Crim R 162 at 181 per Mahoney J

    [11] (1994) 34 NSWLR 667 at 676 AB

20. Mr Hoy submitted that it is not sufficient for the accused to assert that if the activities of the three named people before the first charged offence were tainted, then that may well taint the material bearing on the charged acts.  Mr Hoy concluded by drawing my attention to the decision in Hirst v The Police (No 2)[12].  I should say that at the outset Mr Hoy argued that his client should not be required to produce documents in response to the subpoena couched in its present terms.  The preface to the paragraphs in the subpoena seeking the documents is in these terms:

    On the basis that one or both of Pedro and Tony were informants…..

    [12] (2005) SASC 480 at [17] – [20]

21. Mr Hoy argued that there is a public immunity in disclosing whether particular persons are informants separate and distinct from actually identifying them.  He argued that the very fact of either acknowledging or denying the existence of documents tended to answer the impermissible question whether Pedro or Tony were informants.  He likened that situation to the practice of the US Navy declining to answer questions about whether or not identified ships were nuclear powered.  I regarded that question as an intermediate one between the first question, whether the accused have established a legitimate forensic purpose, and the second question, whether the public interest immunity applies to specific documents.  I will deal with that issue after determining the first question.

    Submissions by the South Australia Commissioner for Police on Legitimate Forensic Purpose

22. Mr Stretton challenged the relevance of any offences committed by the accused before the first charge.  He argued that such matters, amounting as they may to background, colour and understanding, had no relevance to the charges before the court.

23. Mr Stretton conceded that if the documents might give rise to a discretionary exclusion of evidence on the grounds that there was impropriety or illegality arising out of the use of an agent provocateur. or methods of entrapment, then that would amount to a legitimate forensic purpose. So much is clear from the judgment of Chief Justice King in Hunt v Wark and Ors[13].  Mr Stretton pointed out that in that same case the accused were not able to raise any serious issue of impropriety on the documents and other materials disclosed.  Mr Stretton described the statement of principles in Hunt v Wark and Antionios Mokbel[14] as the high point of principle for the production of documents.  In Mokbel[15], Gillard J determined that documents that will be relevant to the question of credibility of police officers disclosed a legitimate forensic purpose.  On the facts of that case his Honour found such a purpose and ruled against a public immunity claim in respect of some, though not all, of the documents sought.

    [13] (1986) 40 SASR 489 at 492-3

    [14] Decision of Gillard J Supreme Court Victoria [2005] VSC 410

    [15] ibid

    Submissions by the Attorney General for South Australia

24. On behalf of the Attorney General, Mr Stretton submitted that none of the telephone intercepts sought to be produced by the subpoena addressed to Telstra may be produced because there is a blanket prohibition against such production pursuant to the Telecommunications (Interception) Act 1979.  He pointed to the primary prohibition contained in clause 7 of the Act which reads as follows:

    Part II – Interception of telecommunications

    7      Telecommunications not to be intercepted

    (1)     A person shall not:

    (a)    intercept;

    (b)    authorize, suffer or permit another person to intercept; or

    (c)    do any act or thing that will enable him or her or another person to      intercept;

    a communication passing over a telecommunications system.

25. Mr Stretton then referred to s 77 which effectively renders evidence obtained from intercepts inadmissible except in the case of intercepts the subject of enumerated other sections of the Act.  Mr Stretton proceeded to identify those sections and argue that none applied to render the intercepts in this case admissible.  The Act operates, he said, as a complete prohibition of the admissibility of the intercepts.  No judicial discretion to admit the intercepts arises.

    Ruling on the Question of Legitimate Forensic Purpose

26. The accused are unable to identify exactly what applications will be made in the event of their being able to inspect the documents sought from the three recipients of the subpoenas, but they identify with some precision the scope of the information sought, the time period during which the information is sought and the nature of the applications that may be made depending upon the documents that they receive.  They seek to know what is the role played by three named people and the authorisation these people had to involve themselves in the drug trade from February 2002 when the accused became targets of the undercover operation and the 2 August 2002 when the accused are alleged to have committed the first charged offence.

27. The High Court case of Ridgeway is authority for the proposition that unlawful activity by the police or their agents in the drug trade may give rise to either the exclusion of evidence or a permanent stay of proceedings as an abuse of process.  The accused have foreshadowed both applications depending upon the materials that they are able to peruse.  The accused have also submitted that on the material presently before the court there is a real suggestion that the undercover agent Albert, was involved in a sale of drugs before he was authorised to do so.  That and other matters put in argument may give rise to cross-examination as to the credibility of some police officers.  Pedro and Tony were clearly involved and their status is unknown.  I do not think that the accused are merely at the “fishing” stage.

28. In those circumstances I find that it is “on the cards”, that the evidence sought by the subpoenas will materially assist the cases for the accused.  There is thus a legitimate forensic purpose in the materials referred to in the subpoenas.  That is the ruling on the first stage of the inquiry.

    The Subpoena to Telstra

29. Notwithstanding that I have found that the accused have a legitimate forensic purpose in perusing the intercepts, or transcripts of them, from Telstra, I find that the provision of the Telecommunications (Interception) Act 1979 prohibits me from admitting them for any purpose, be that evidence in the trial, evidence on the voir dire or material that may be produced for perusal.  I find that no inclusory provisions of the Act override the expressly exclusory provisions contained in s 7 and s 77 of the Act.  That objection raised by the Crown Solicitor is upheld without further consideration of the question of public interest immunity.  It may be ironic that a provision which might otherwise protect an accused from illegally obtained intercepts also operates to prevent him from exposing illegality on the part of the police or their agents but that does not render the material admissible in the face of the terms of the Act.  The subpoena addressed to Telstra will be set aside.

30. Although it was put by Mr Stretton that his Honour Judge David ruled that the intercepts were illegally obtained, I do not find any mention of that in the transcript of the order made by Judge David on 19 November 2004.  It may be that he made such an order on another occasion that has not been drawn to my attention.  In his reasons for the finding on 19 November his Honour simply described the telephone interceptions as “admittedly illegal”.  Submissions made before me suggest that his Honour Dr  Cannon may have ruled the tapes illegal at or before the committal proceedings.  However that may be, I, myself, find that they were illegally obtained because the permissive provisions of the Act could not then be used for the drug here under question.  No counsel suggested otherwise.

    The Intermediate Question

1. There emerged during argument what I then considered to be an intermediate question, one distinct from whether there is legitimate forensic purpose in the production of the documents and the question of whether a public interest immunity protects the documents from production.  That intermediate question was, as I have indicated, posed by Mr Hoy for the NSW Commissioner for Police.  Quite apart from any specific documents that may be object to on the ground of public interest immunity, is the Commissioner relieved of the necessity of disclosing, either by his actions or inactions, that a nominated person is either an informant or an undercover police officer.  For the sake of consistency I will describe this as an intermediate question, but it is really an aspect of the public interest immunity (Gee v Magistrates Court of South Australia and Ano)[16]

   [16] (2004) 89 SASR 534 [49].

2. Mr Abbott submitted that there may be a difference between the situation of an informer, on the one hand, and an undercover police officer, on the other.  The position may be different as between the three named people.  It is common ground that Albert is an undercover police officer with some disclosed authority to act in that capacity.  His identity is not known to the accused. Pedro’s identity is known to the accused.  The accused’s solicitors have spoken to him.  To disclose whether he is an informant goes against a widely recognised public policy interest in keeping the identity of informants confidential (Mason[17]). 

   [17] (2000) 77 SASR 105 per Bleby

3. In the case of Tony, the accused do not know him and do not seek to know his identity.  They want to know whether he is an informant or an undercover operative.  Mr Abbott argues that they are entitled to know that.  They want to inspect all documentation dealing with him. 

4. There is a well established rule of law that the identity of police informers will not be disclosed in most legal proceedings.  It is part of the public interest immunity (Mason[18]; Gee[19]).  The exception to the exclusory rule has been recently discussed by the Court of Criminal Appeal in Mason[20] and is to the effect that disclosure will be ordered if it can be demonstrated that there is good reason to think that the disclosure of the informer’s identity may be of substantial assistance to an accused in answering the case against him.

   [18] (2000) 77 SASR 105 per Bleby J 110-117

   [19] (2004) 89 SASR 534

   [20] (2000) 77 SASR 105 at at 115

5. With that background I deal with the named people individually.

6. I deal with Albert first.  I do so without looking at the material handed up confidentially before me.  In my view, the Commissioner is not relieved from disclosing documents concerning him. The materials would simply indicate whether or not Albert took part in the operation before the date upon which he was authorised to do so.  In this circumstance, given the disclosures already made in relation to Albert, I think the balance between the public interest in withholding sensitive documents from production against the need for a court, in the performance of its function, to have all relevant evidence available to it (see Medical Board of SA v Fisher[21], Adelaide Brighton Cement v SA[22]) falls on the accused’s side.

   [21] (2000) 76 SASR 242 at 250

   [22] (1999) 75 SASR 209 at 212-216 per Debelle J

7. The situation with Pedro is different.  He is the only one actually known to the accused.  In my view, as a matter of public policy, the Commissioner should not be required to disclose whether he is an informant.  There is then the question raised by Mr Abbott whether the position is different if he is an undercover police officer.  The NSW Commissioner argues[23] that to disclose whether or not Tony or Pedro was an undercover police office would tend to confirm or deny that that person was an informer, and to say that both were undercover operatives would tend to suggest that, if there was an informer in the investigation, then it was some other person.

   [23] paragraph 32 of Outline

8. The categories of public interest immunity are not closed (Gee[24]).  I appreciate that some of the considerations behind the protection of informers do not apply to undercover police officers.  Confidentiality is known to be accorded to informers in the hope of encouraging them to pass on information to the authorities.  Police officers do that as part of their job.  Nevertheless the importance of security is common to both groups.  So too is the topic of the confidentiality of police undercover methodology.  I have not found any authority referring specifically to the position of undercover operatives but I would think that the ability of an undercover operative to take part in other ongoing investigations is a reason to accord them the sort of protection afforded to an informant.  For these reasons I conclude that the Commissioners should also be relieved of the obligation to disclose whether Pedro is an undercover police office.

   [24] (2004) 89 SASR 534 at [117] per Besanko J

9. The position of Tony is different only in that the accused do not know his identity.  I do not think that makes sufficient distinction so as to lead me to treat him differently from Pedro. 

10. In my view the Commissions of Police should not be called upon to do anything which would tend to disclose the role of either Pedro or Tony.

11. I do not accept the argument contained in the accused’s written submission dated 3 May 2006 that, where a question of public interest immunity arises, I should, without more, inspect the documents for the purpose of weighing the competing public interests. As the Crown Solicitor submitted in his written submission dated 15 May 2006, Debelle J in Adelaide Brighton Cement v State of SA and Ano[25] should not be taken as saying that inspection is always mandatory.  For the purposes of the rulings I have just made, I do not consider it necessary to see the documents which are the subject of the subpoenas.

    [25] (1999) 75 SASR 209 at 214 paragraph (9)

12. These findings mean that certain parts of the subpoenas must be set aside on this intermediate ground.  I now identify those parts of the subpoenas.

13. I set aside the whole of the subpoenas addressed to the Commissioners of Police for South Australia and New South Wales except for the following paragraphs which are identical in the case of each subpoena.

14. 1)     Paragraph 2 insofar as it relates only to Albert (ie 2.1.3. and 2.4).

15. 2)     Paragraph 3 insofar as it relates only to Albert (ie 3.1.3, 3.5.3, 3.6.3,                3.7.3).

16. 3)     Paragraph 7

17. In addition, in relation to the subpoena addressed to the NSW Police Commissioner, paragraph 9, insofar as it relates only to Albert, is not set aside.

18. I have made the above rulings without having read the materials contained in the three envelopes tendered on a confidential basis.  I then read the confidential materials.  I do not, as a result, vary any rulings.

    The Question of Public Interest Immunity

19. In light of the rulings I have already made I will hear further submissions on the question of whether Public Interest Immunity should protect from production any individual materials not already excluded from production.