R v Lipton, Richard - [2010] NSWDC 187

CITATION: R v Lipton, Richard [2010] NSWDC 187

JUDGMENT DATE:
9 April 2010

JURISDICTION: Criminal

JUDGMENT OF: King SC DCJ

DECISION: In respect of the subpoena, the Court orders that para 1 as confined by agreement between the parties, para 2 and para 4 issued to the Commissioner of Police on 25 November 2009 are set aside on the grounds that the subpoena lacks a legitimate forensic purpose to require production of the documents, subject to those paragraphs of the schedule.

CATCHWORDS: Notice of Motion to set aside subpoena - legitimate forensic purpose - fishing expedition - public interest immunity

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985

CASES CITED: Attorney-General for New South Wales v Ghidgey [2008] NSWCCA 65
Commissioner for Railways v Small (1938( 38 SR (NSW) 563
Carroll v Attorney-General (1993) 70 ACrimR 162
R v Saleam [1999] NSWCCA 66

PARTIES: Regina
Commissioner of Police (NSW)
Lipton, Richard

FILE NUMBER(S): 2009/78658

COUNSEL: Mr P A Regattieri for Commissioner of Police (NSW)
Mr P Hastings QC for Mr R Lipton

JUDGMENT

1 HIS HONOUR: The matter before the Court is a notice of motion to set aside a subpoena issued by the defendant in respect of criminal proceedings between Regina and Richard Alexander Lipton. The subpoena was issued to the Commissioner of Police on 25 November 2009. The Commissioner seeks to have the subpoena set aside only in part, that part being paras 1, 2 and 4.

2 Paragraph 1 of the schedule refers to all duty notebooks and diaries then on issue to any officer involved in the investigation and/or arrest of Richard Alexander Lipton in the period January 2009 to May 2009. By agreement between the parties, the terms of para 1 have been narrowed for present purposes to such documents as relate to the investigation or arrest of Richard Lipton, and to a Melanie Brown.

3 Paragraph 2 is all statements and reports made in relation to the said matter in relation to Melanie Brown, referred to in police statements/intercepts as an “unidentified female.”

4 Paragraph 4 is all written or electronic records of communication between any officer of the New South Wales Police and Melanie Brown.

5 The principal ground on which the Commissioner seeks to have the subpoena set aside is on the basis that there is no legitimate forensic purpose for the production of the specified documents. Secondly, contingent on the finding in respect of that argument, the Commissioner of Police argues that if the Court is satisfied as to there being a legitimate forensic purpose, any documents would be protected by a claim of public interest immunity.

6 The defendant, Richard Lipton, has entered pleas of guilty in respect of two charges of supplying a large commercial quantity of a prohibited drug, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985.

7 Tendered during the course of the proceedings were the following exhibits. Exhibit 1 is a statement prepared for the criminal proceedings by Detective Senior Constable Julia…

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 Lipton, Richard

Details

AGLC: R v Lipton, Richard [2010] NSWDC 187
Case: [2010] NSWDC 187
Decision Date: 9 April 2010

CaseChat Overview and Summary

The case involved the defendant, Richard Lipton, and the respondent, the Commissioner of Police. Lipton sought to have a subpoena set aside, which was issued to the Commissioner for the production of certain documents. The subpoena was issued in the context of a larger criminal investigation. The matter was heard in the Supreme Court of New South Wales.

The key legal issues before the court were whether the subpoena had a legitimate forensic purpose and whether it was a fishing expedition or an attempt to gain an unfair advantage. The court also considered whether the documents were protected by public interest immunity. Lipton argued that the subpoena was not justified and was instead an attempt to obtain documents for an improper purpose.

In determining the matter, the court found that the subpoena did not have a legitimate forensic purpose for requiring the production of the documents. The court considered the scope of the subpoena and found that it was overly broad and not narrowly tailored to the specific needs of the case. The court also noted that the subpoena could be seen as a fishing expedition, as it was seeking a wide range of documents without a clear connection to the charges against Lipton. Additionally, the court found that some of the documents were protected by public interest immunity and should not be disclosed. The court set aside the subpoena to the extent that it lacked a legitimate forensic purpose, subject to certain agreed-upon provisions.

Orders

Orders of the court

In respect of the subpoena, the Court orders that para 1 as confined by agreement between the parties, para 2 and para 4 issued to the Commissioner of Police on 25 November 2009 are set aside on the grounds that the subpoena lacks a legitimate forensic purpose to require production of the documents, subject to those paragraphs of the schedule.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Lipton, Richard [2010] NSWDC 187
JUDGMENT DATE:	9 April 2010
JURISDICTION:	Criminal
JUDGMENT OF:	King SC DCJ
DECISION:	In respect of the subpoena, the Court orders that para 1 as confined by agreement between the parties, para 2 and para 4 issued to the Commissioner of Police on 25 November 2009 are set aside on the grounds that the subpoena lacks a legitimate forensic purpose to require production of the documents, subject to those paragraphs of the schedule.
CATCHWORDS:	Notice of Motion to set aside subpoena - legitimate forensic purpose - fishing expedition - public interest immunity
LEGISLATION CITED:	Drug Misuse and Trafficking Act 1985
CASES CITED:	Attorney-General for New South Wales v Ghidgey [2008] NSWCCA 65 Commissioner for Railways v Small (1938( 38 SR (NSW) 563 Carroll v Attorney-General (1993) 70 ACrimR 162 R v Saleam [1999] NSWCCA 66
PARTIES:	Regina Commissioner of Police (NSW) Lipton, Richard
FILE NUMBER(S):	2009/78658
COUNSEL:	Mr P A Regattieri for Commissioner of Police (NSW) Mr P Hastings QC for Mr R Lipton