R v Richard Lipton (No.2) - [2010] NSWDC 295

CITATION: R v Richard LIPTON (No.2) [2010] NSWDC 295
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 29/10/10; 12/11/10; 26/11/10.

JUDGMENT DATE:
26 November 2010

JURISDICTION: CRIMINAL JURISDICTION

JUDGMENT OF: Finnane QC DCJ

DECISION: Stay of proceedings granted until the Director of Public Prosecutions informs the Court that it has sought and obtained from the officer in charge all the documents pertaining to the relationship between the Police and Melanie Brown; and further that the Director has formed an opinion on whether those documents may be relevant to any matter of sentence of the offender; and further that the Director has communicated that opinion to the legal adviser of the offender. (Note: a Crown appeal is pending as of the date of publication of this judgment)

CATCHWORDS: Notice of motion for stay of proceedings - Crown's duty of disclosure - material in possession of the New South Wales Police - whether Director of Public Prosecutions ought to obtain existing documents and form an opinion as to whether they should be disclosed.

LEGISLATION CITED: Guidelines of the Office of the Director of Public
Prosecutions (NSW) Guidelines (s 18)
Director of Public Prosecutions Act 1986 (NSW), Schedule 1.

CASES CITED: Grey v the Queen [2001] HCA 65; Mallard v the Queen [2005] HCA 68; Regina v Blackledge [1996] 1 Cr. App.R 326; Regina v Brown [1994] 1 WLR 1599; Regina v Maguire and others [1992] 2 WLR 767; Regina v Petroulias (no 22) [2007] NSWSC 2007.

PARTIES: Regina
Lipton, Richard

FILE NUMBER(S): 2009/78658

COUNSEL:
Mr P Hastings QC for the applicant
Mr G Bellew SC for the Crown

SOLICITORS: James A Moustacas & Co, solicitors for the applicant
Director of Public Prosecutions

1. Richard Lipton has pleaded guilty to a serious offence of supplying prohibited drugs. He was arrested on 21 May 2009 and has appeared before me for sentence together with a man by the name of Allan Sassoon.

2. Before the matter came before me, there was litigation before his Honour Judge King in which the investigating Police were required by subpoena to produce documents directed to establishing the role of a woman called Melanie Brown. It would appear that Melanie Brown was in some form of relationship with the accused Lipton and it was put on behalf of Lipton that there may be material showing that she had induced him to commit the offences with which he has been charged.

3. It would be relevant on sentence if he were persuaded by someone to commit offences, particularly if that person were acting as the agent of Police officers.

4. Police objected to producing material on two grounds:

1. There was no legitimate forensic purpose in requiring the production of the documents.

2. The documents were properly protected by public interest immunity.

5. His Honour Judge King, who gave judgment on the matter on 9 April 2010, dealt with the matter entirely on…

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 Richard Lipton (No.2)

Details

AGLC: R v Richard Lipton (No.2) [2010] NSWDC 295
Case: [2010] NSWDC 295
Decision Date: 26 November 2010

CaseChat Overview and Summary

The respondent, Richard Lipton, applied for a stay of proceedings pending the resolution of issues regarding the Crown's duty of disclosure. Lipton's application focused on the disclosure of documents held by the New South Wales Police that pertained to the relationship between the police and Melanie Brown, a witness in the case. The application was heard in the Supreme Court of New South Wales. The central legal issue was whether the Director of Public Prosecutions was obligated to obtain documents from the police, assess their relevance to the sentencing of the respondent, and communicate this assessment to the respondent's legal adviser.

The court considered the principles of fairness and the Crown's duty to disclose material that may assist the defence. It was noted that the police's relationship with a key witness could potentially impact the sentencing, and therefore, any relevant documents should be disclosed to the defence. The court concluded that it was appropriate for the Director of Public Prosecutions to seek out and evaluate the documents in question and to inform the respondent's legal adviser of the assessment. This would ensure that the respondent had the opportunity to challenge the relevance and admissibility of such documents before sentencing.

Consequently, the court granted the stay of proceedings. The stay was contingent upon the Director of Public Prosecutions taking the necessary steps to obtain the relevant documents from the police, forming an opinion on their relevance, and communicating this opinion to the respondent's legal adviser. The court's decision aimed to uphold the principles of fairness in the criminal justice process and ensure that the respondent had an opportunity to address any potentially relevant material prior to sentencing. The orders of the court were to maintain the stay of proceedings until the conditions outlined were fulfilled.

Orders

Orders of the court

Stay of proceedings granted until the Director of Public Prosecutions informs the Court that it has sought and obtained from the officer in charge all the documents pertaining to the relationship between the Police and Melanie Brown; and further that the Director has formed an opinion on whether those documents may be relevant to any matter of sentence of the offender; and further that the Director has communicated that opinion to the legal adviser of the offender. (Note: a Crown appeal is pending as of the date of publication of this judgment)

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Richard LIPTON (No.2) [2010] NSWDC 295 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	29/10/10; 12/11/10; 26/11/10.
JUDGMENT DATE:	26 November 2010
JURISDICTION:	CRIMINAL JURISDICTION
JUDGMENT OF:	Finnane QC DCJ
DECISION:	Stay of proceedings granted until the Director of Public Prosecutions informs the Court that it has sought and obtained from the officer in charge all the documents pertaining to the relationship between the Police and Melanie Brown; and further that the Director has formed an opinion on whether those documents may be relevant to any matter of sentence of the offender; and further that the Director has communicated that opinion to the legal adviser of the offender. (Note: a Crown appeal is pending as of the date of publication of this judgment)
CATCHWORDS:	Notice of motion for stay of proceedings - Crown's duty of disclosure - material in possession of the New South Wales Police - whether Director of Public Prosecutions ought to obtain existing documents and form an opinion as to whether they should be disclosed.
LEGISLATION CITED:	Guidelines of the Office of the Director of Public Prosecutions (NSW) Guidelines (s 18) Director of Public Prosecutions Act 1986 (NSW), Schedule 1.
CASES CITED:	Grey v the Queen [2001] HCA 65; Mallard v the Queen [2005] HCA 68; Regina v Blackledge [1996] 1 Cr. App.R 326; Regina v Brown [1994] 1 WLR 1599; Regina v Maguire and others [1992] 2 WLR 767; Regina v Petroulias (no 22) [2007] NSWSC 2007.
PARTIES:	Regina Lipton, Richard
FILE NUMBER(S):	2009/78658
COUNSEL:	Mr P Hastings QC for the applicant Mr G Bellew SC for the Crown
SOLICITORS:	James A Moustacas & Co, solicitors for the applicant Director of Public Prosecutions