The Queen v Tipungwuti-Peris
[2020] NTSC 1
•10 January 2020
CITATION:The Queen v Tipungwuti-Peris [2020] NTSC 1
PARTIES:THE QUEEN
v
TIPUNGWUTI-PERIS, Steven Anthony
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory jurisdiction
FILE NO:21850391
DELIVERED: 10 January 2020
HEARING DATES: 23 August 2019
JUDGMENT OF: Blokland J
CATCHWORDS:
CRIMINAL PROCEDURE — Subpoena — Application to set aside — Whether legitimate forensic purpose — Where subpoena is sought to determine whether police search was lawful per s 120C of the Police Administration Act 1978 (NT)
CRIMINAL PROCEDURE — Subpoena — Application to set aside — Whether scope of subpoena is too broad — Subpoena limited to documents that contain information relied upon by police to initiate a stop and search
CRIMINAL PROCEDURE — Subpoena — Application to set aside — Whether documents returnable would assist defendant’s case
CRIMINAL PROCEDURE — Subpoena — Objection to production of material — Public interest immunity— Misuse of Drugs Act 1990 (NT) ss 24 and 25
Evidence (National Uniform Legislation) Act 2011 (NT) s 130(1), s 131A,
S 133Misuse of Drugs Act 1990 (NT) s 24, s 25
Police Administration Act 1978 (NT) s 120C
Alister v The Queen [1984] HCA 45 85; 154 CLR 404, Commissioner of Police Force for the Northern Territory v Cassidy & Anor [2013] NTCA 1, D v National Society for the Prevention of Cruelty to Children [1978] AC 171; [1977] 1 All ER 589, Ku-ring-gai Council v West [2017] NSWCA 54; 95 NSWLR 1, Llewellyn & Anor v Finn & Anor (1994) 116 FLR 211, Ragg v Magistrates’ Court [2008] VSC 1; 18 VR 300, The Queen v Spizzirri [2000] QCA 469; 117 A Crim R 101, referred to.
Stephen Odgers, Uniform Evidence Law (Thomson Reuters, 14th ed, 2019)
REPRESENTATION:
Counsel:
Issuing Party: G Chipkin
Commissioner of the
Northern Territory Police: B Rogers and K McLaren
Solicitors:
Issuing Party: North Australian Aboriginal Justice Agency
Commissioner of the
Northern Territory Police: Solicitor for the Northern Territory
Judgment category classification: B
Judgment ID Number: BLO2001
Number of pages: 18
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINThe Queen v Tipungwuti-Peris [2020] NTSC 1
No. 21850391
BETWEEN:
THE QUEEN
AND:
STEVEN ANTHONY TIPUNGWUTI-PERIS
CORAM: BLOKLAND J
Ruling on application to set aside a subpoena
and directions on documents produced(Delivered 10 January 2020)
Introduction
Steven Tipungwuti-Peris (‘the issuing party’/‘the accused’) is to be tried on charges of supplying commercial quantities of cannabis, possession of property knowingly obtained from the supply of cannabis, and related charges. The trial is currently listed to commence on 9 June 2020. The matter is listed for a voir dire hearing on various evidence issues before the trial Judge prior to the trial date.
By subpoena dated 18 July 2019, the issuing party sought the production of certain documents from the Commissioner of the Northern Territory Police (‘the Commissioner’). The Commissioner seeks to set aside the subpoena on the following grounds. First, that there is no legitimate forensic purpose to support the issue and enforcement of the subpoena. Second, the scope of the subpoena is too broad and is said to amount to a ‘fishing expedition’. Third, it is not ‘on the cards’ that the documents returnable would assist the accused’s case. Additionally, the Commissioner submits the documents are protected from disclosure by public interest immunity.
The first two objections are not made out. In the circumstances of this case, access to the documents sought by the subpoena cannot readily be characterised as a ‘fishing exercise’. This will be discussed further. There are some similarities between the matters required to be considered under the third objection, and the question of whether the same documents should be protected from disclosure in the public interest. The third objection requires consideration of whether it is ‘on the cards’[1] that the documents would be of assistance to the accused. Similarly, as part of determining the balance between the public interest in withholding the documents as opposed to production required in the context of a criminal trial, consideration must be given to whether the material may be of assistance in the accused’s case. In order to consider the third objection and the question of public interest, I have examined the documents produced in response to the subpoena together with an affidavit setting out the Commissioner’s general objections, sworn by Kiran McLaren on 31 July 2019, and a confidential affidavit setting out the grounds on which disclosure is resisted by the Commissioner in the public interest.
The documents sought under the subpoena are described in its Schedule as follows:
1. Copies of all police records, notebook entries, PROMIS entries, documents, email correspondence and other information in the possession of police which contains the information relied upon by police to initiate the stop and search of Toyota Kluger NT registration BP3GEEL on 22 May 2018 including:
a. The ‘information’ referred to in paragraph [7] of the statement Kenneth Bradshaw dated 28 March 2019;
b. The ‘information’ referred to in paragraph [11] of the statement Kenneth Bradshaw dated 28 March 2019;
c. The ‘information’ referred to in paragraph [13] of the statement Kenneth Bradshaw dated 28 March 2019;
d. The ‘information’ received from Jabiru Police referred to in paragraph [14] of the statement Kenneth Bradshaw dated 28 March 2019; and
e. The ‘received information’ referred to in paragraph [3] of the statement of Kellie Moir dated 3 January 2019.
The statements of police officers Kenneth Bradshaw and Kellie Moir referred to in the schedule to the subpoena are before the Court. The Court was told the accused would be making application to have evidence found during the search of the Toyota Kluger on 22 May 2018 excluded as it will be alleged that the search of the vehicle was unlawful.
Part of the prosecution case will be that during the search of the Toyota Kluger on 22 May 2018, $32,100 cash was found in a bag which contained items of clothing alleged to be those of the co-accused Rachel Baker. Rubber bands which were used to wrap the cash were found to have DNA which is attributable to the accused. The Court was told the prosecution case is largely circumstantial. The Crown will rely upon the finding of the cash in conjunction with the presence of the accused’s DNA on the rubber bands as a significant part of the circumstantial evidence to prove that the accused was involved in large-scale drug supply in Galiwin’ku over a two-year period from the beginning of 2017 to the end of 2018. In addition to the evidence obtained from the search of the vehicle, it is understood the prosecution case includes bank records of money deposited into bank accounts, statements from residents in Galiwin’ku, including from some people who are said to be criminally concerned, text messages and the finding of 162 grams of cannabis, drug paraphernalia and $1920 cash in the accused’s bedroom.
All questions concerning the current subpoena relate only to the information relied on by police for the stop and search of the vehicle on 22 May 2018. The separate question of the legality of the search will be the subject of the voir dire before the trial Judge. The issues to be considered in relation to the current application do not necessarily relate to documents which may be relevant more broadly to other matters revealed by the police investigation. The subpoena is limited to documents that ‘contain the information relied upon by police to initiate the stop and search of Toyota Kluger NT registration BP3GEEL on 22 May 2018.’ This part of the Schedule to the subpoena necessarily implies that what is sought is information obtained by police at some time before the stop and search was conducted. It may be inferred that the documents produced in response to the subpoena were considered by the Commissioner to be relevant to the belief held by the investigating officers on 22 May 2018. It is appropriate to attempt to deal with the issues raised by this application on the basis that the information in the documents produced, either single documents or together with other documents, were relevant to the belief held by police officers.
The resolution of this particular application does not require a determination of whether or not police officers actually held a ‘reasonable suspicion’ as required by s 120C of the Police Administration Act 1978 (NT) (‘Police Administration Act’). Rather, the issue is whether there is material produced that would assist the accused to challenge the legality of the search, or would otherwise be material to the consideration by the trial Judge of the accused’s application and consequently the question of compliance with s 120C and the legality of the search.
Section 120C of the Police Administration Act permits a member of the police force without warrant to search a vehicle if ‘the member has reasonable grounds to suspect that a dangerous drug, precursor or drug manufacturing equipment may be found on or in it.’[2] In this case, it is understood no drugs were found during the stop and search of the vehicle; however, if admissible, evidence of the cash and the accused’s DNA on the rubber bands will be part of the broader prosecution case. As indicated, it is not part of this decision to determine whether a reasonable suspicion as to the presence of drugs or drug equipment was held by police officers. That will be a question resolved on the voir dire. The evidence on the voir dire may well include oral evidence or other material beyond what has been produced in response to the subpoena issued on 18 July 2019. That is an unknown factor at this time.
The objections to the disclosure of the material produced under the subpoena
The Commissioner submits the issuing party has not shown there is an issue in the proceedings to which the documents relate, and in those circumstances, the issuing party is embarking on a fishing expedition which is not permissible.[3] It was said this is especially the case when a court is faced with a subpoena seeking production of every document relating to an investigation (for example, ‘all PROMIS records…’). On the basis of cases such as Llewellyn & Anor v Finn & Anor[4] (‘Llewellyn v Finn’) it was argued the issues must be identified and made plain by reference to instructions received on the point and disclosed openly to the Court.[5] Considering the breadth of the subpoena, the Commissioner argued there cannot be a legitimate forensic purpose in the relevant sense to support enforcement of the subpoena. Even if there is a legitimate forensic purpose for some of the material falling within the scope of the subpoena, it was said the subpoena casts a net wider than is necessary to catch documents for any such identified forensic purpose and therefore the subpoena should be set aside. Further, it was submitted that it cannot be ‘on the cards’ that all of the material answering the description in the subpoena will assist the accused’s case.
The stated grounds of the objection, particularly the assertion that the subpoena has no legitimate forensic purpose and that its scope is too broad are commonly relied upon in aid of arguments to set aside a subpoena. In this particular case, the forensic purpose is clearly defined, namely to support the accused’s argument that the search was unlawful. It is plain that this argument will be that investigating officers did not have reasonable grounds to suspect there were dangerous drugs, precursors or drug manufacturing equipment in the car.
Although the first paragraph of the Schedule refers to copies of police records, notebook entries, PROMIS entries etcetera, the items required are confined to documents which contain ‘the information relied upon by police to initiate the stop and search of Toyota Kluger… on 22 May 2018’. The particular items in the schedule which refer to ‘information’ are a reference to that term as it is used in the investigating officer’s statements. In my view, the scope of the subpoena differs markedly from the scope of the subpoena discussed by Martin (BF) CJ in Llewellyn v Finn, where his Honour referred to cases in which the subpoena effectively tells the Commissioner ‘we want everything you have got’.[6] That is not the situation here. Both police officers refer to information being received and relied on for the purpose of the stop and search of the vehicle on 22 May 2018. The subpoena relates only to documents that contain that information, effectively relied on by police to conduct that particular search. The Court was told the information has not been disclosed to the defence. In my view the documents sought for inspection are described in a particular manner and are confined to a narrow issue.
This was not a subpoena of such generality of the kind which was considered in Commissioner of Police Force for the Northern Territory v Cassidy & Anor[7] (‘Cassidy’). In Cassidy it was held the following three principles were relevant in the face of an application to set aside a subpoena on the grounds of being too wide. First, the issuing party must show that the subpoena itself describes the documents being sought with sufficient particularity. Second, the issuing party must identify expressly and with precision the legitimate forensic purpose for which access is sought to the documents meeting the description. The subpoena must not cast a net wider than is necessary to obtain the documents in furtherance of the forensic purpose. Third, the issuing party must show that it is ‘“on the cards” that the documents would assist the party’s case’.[8]
The principle that the subpoena must not cast a net wider than is necessary does not require the subpoena to be set aside if the Court believes it is appropriate to permit the subpoena to be varied in order to permit partial compliance. In any event the scope of the subpoena has been carefully calibrated.
I would not uphold the first two objections to the subpoena. There is a legitimate forensic purpose in seeking the material. The scope of what is being sought is narrow. Further, as far as may be ascertained it is ‘on the cards’[9] that documents which answer the description in the schedule to the subpoena will assist the accused’s case. This has been described as a low threshold.[10] The documents have been examined by the Court to determine whether all or some of them may assist the accused’s case. The description in the Schedule tends to indicate that they would be of assistance; however, after examination, it has been determined that some of the documents would not assist the accused, some are to be withheld from production in the public interest, and some are to be inspected by counsel for the accused after sensitive material is concealed.
The question of inspection and the public interest
With these published reasons is a confidential annexure titled ‘Confidential Annexure to judgement in The Queen v Tipungwuti-Peris [2020] NTSC 1’. The Annexure outlines further considerations about particular documents under consideration and whether they should be protected from inspection or whether they will be of such assistance to the accused that on balance the accused should be entitled to inspect them. A number of authorities stand for the proposition the Court should not deprive assistance which could be given to the accused in their defence.[11] It is necessary however to consider carefully the question of the public interest. The Court must engage in a balancing process to determine whether the public interest supports keeping the documents confidential on the basis that it would be injurious to the public interest to disclose them, or whether, having regard to the special weight that is to be given to the fact the documents may support the defence of an accused in criminal proceedings, the documents should be made available for inspection.[12]
Both the common law and the Evidence (National Uniform Legislation) Act 2011 (NT) (‘UEA’) recognise the supervisory role of the courts to assess claims of privilege by adhering to the balancing process between the public interest in preserving confidentiality and the evidentiary value and importance of the documents to particular litigation.[13] Section 130(1) of the UEA provides:
If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence.
Although s 130(1) of the UEA provides for documents to be admitted ‘into evidence’, s 131A extends its application to a ‘disclosure requirement’ under a subpoena. The power recognised at common law allowing a court to order production and inspect a document is retained in s 133 of the UEA.[14] Although the common law principles inform the content of s 130 of the UEA, Basten JA in Ku-ring-gai Council v West[15] made the following observations on the approach to be followed under s 130(1):
…..[the section] requires identification of the scope, content and importance of the (a) public interest in admitting information or a document into evidence, and of (b) the public interest in preserving secrecy or confidentiality in relation to that information or document. It is only when the latter outweighs the former that the Court is empowered to direct that the information or document not be adduced in evidence.
In accordance with s 131A, the same approach is to be taken with respect to the question of inspection, as with admission into evidence. The Court is to assess the public interest in either directing inspection of the document(s) or preserving secrecy. It is only when the need for confidentiality or secrecy outweighs the public interest in disclosure to an accused in order to conduct their case, that the Court will not direct disclosure.
In relation to each document, the Court must consider whether it contains information that would, or could, lead to a chain of inquiry that would advance the case of the accused or diminish the case of the Crown. Against that consideration, the Court must consider the claims of public interest and whether the information should be immune from disclosure. The claims of public interest will be considered broadly here. Where it is necessary and relevant to particular documents, those matters will be referred to in the confidential annexure.
Broadly, disclosure of a number of the documents produced is resisted on the grounds that the information is sourced from confidential informants and/or will reveal police methodology. Obviously the identity of informants is to be protected, however in most instances that protection is likely to be achieved through concealing the name and identity of the informant, including references to particular places or events that may lead to an informant’s identity. Extra caution is required in small communities where identity may prove difficult to protect. There is a strong public interest in concealing the identity of informants. This principle is underlined by s 24 of the Misuse of Drugs Act 1990 (NT) (‘Misuse of Drugs Act’) which in the first instance prohibits disclosure of the revelation of the identity of an informer. Further, a witness cannot be asked, and if asked cannot be compelled to disclose, the identity of the informer, any particular likely to lead to their identity, nor the fact that information was received from an informer.[16] Section 25(2) prohibits a police officer being compelled to produce a report containing confidential information, however the prohibitions against disclosure in s 25 of the Misuse of Drugs Act are subject to s 25(3), which provides:
Subsection (1) or (2) does not apply to the extent that the defendant satisfied the Court that it is in the interests of justice in the particular case that the information be given, the report or document produced or the statement made, as the case may be.
The approach to be adopted under both the Misuse of Drugs Act and the UEA requires a balancing of the competing interests. Even though the identity of informers and confidential information is recognised as material which should be protected,[17] this is not an absolute protection and must be weighed against the interests of an accused as discussed. It is appreciated that the knowledge of the very existence of informers may be sensitive in small communities. There is a risk that informants may not continue to provide information to police in the future. However, informants are currently a regular feature of drug cases before the courts, whether those cases are from remote and regional communities or more broadly in the urban setting. The sensitivity inherent in small communities is but one factor to be weighed in the balancing process.
I do not regard the claims to public interest immunity in relation to police methodology to be particularly strong where that methodology may be regarded as well-known in the community. While the identity of any person providing information is to be concealed, the fact that investigating officers utilise informers must be relatively well known. In contrast, the claim to public interest immunity on the basis of ongoing investigations is in my view a strong claim. In most instances this claim is to be upheld in favour of preserving confidentiality.
For example, it is not at all surprising that investigating officers may access bank accounts and financial records by various means during an investigation. This methodology is known in the community and is unlikely to detract from effective policing. On the other hand, other methodologies including those which reveal the reasoning of investigators taking particular steps and those which are not well known may well require protection from disclosure to ensure future investigations are not prejudiced.
Unless I am misinterpreting the documents, there is no document which specifically or directly relates to the Toyota Kluger on 22 May 2018. As I read the documents, it is a combination of material that is likely to be relied on by either party at the voir dire to establish or detract from the applicable belief on the part of investigating police. As above, it is inferred the documents produced contributed to the state of mind of investigating officers at the time of the stop and search.
The Confidential Annexure provides notations on what the relevance and/or use of a document may be. The Confidential Annexure is not intended to provide comprehensive reasons. The directions made with respect to inspection have been made following the application of the principles already discussed.
Until further order, the Confidential Annexure will be released to the Commissioner and his counsel, relevant counsel for the Director of Public Prosecutions who are involved directly in this prosecution (including in any decision to appeal this ruling) and police officers directly involved in the investigation. The Confidential Annexure is available to the trial Judge or any Judge of the Court including the Court of Appeal. Until further order, the confidential annexure will not be disclosed to the accused or his counsel as disclosure may undermine the claims for privilege which have been upheld.
The following directions are made in relation to the documents produced:
a. Document 113710
Inspection required. All names and material capable of identifying persons other than the accused and co-accused are to be concealed.
b. Document 113433
Inspection not required.
c. Document 113257
Inspection required. All other names and material capable of identifying persons, other than the accused or co-accused to be concealed.
d. Document 113363
Inspection required. All other names and identifying material of persons other than the accused and co-accused are to be concealed.
e. Document 113174
Inspection not required.
f. Document 113167
Inspection required. Identity of other individuals to be concealed. Comments relevant to source grading, information grading and source compliant are to be concealed.
g. Document 113086
Inspection required. Conceal all references to all other persons and any particulars that may identify them. Conceal all information relating to source grading, information grading and source compliant.
h. Document 112710
Inspection required. Conceal all references to other persons, and any particulars that may identify them including source grading, information grading and source compliant.
i. Document 112709
Same direction as 112710.
j. Document 112062
Inspection required. Conceal names of persons other than the accused and co-accused and any particulars that may identify them. Conceal source grading, information grading and source compliant.
k. Document 111976
Inspection required. Conceal the information as detailed in the Confidential Annexure. Conceal any particulars that may identify the informant. Conceal source grading, source information and source compliant.
l. Document 11961
Inspection not required.
m. Document 111888
Inspection not required.
n. Document 111786
Inspection not required.
o. Document 111631
Inspection of four entries relating to the accused as they appear on page 1 is required. All other information, names and identifying material of other persons are to be concealed.
p. Document 111629
Disclosure required, but limited to entries on the documents which are above and including the ‘sender details’. The balance of the report is to be concealed.
q. Document 111474
Disclosure required. Conceal all references to other persons, aside from the co-accused.
r. Document 110751
Disclosure not required.
s. Document 110127
Disclosure required. Particulars that may identify any person other than the accused or co-accused are to be concealed.
t. Document 110067
List of transactions relating to the accused and co-accused on page 1 are required to be disclosed. Otherwise all other names and transactions are to be concealed. Disclosure not required of the balance of document.
u. Document 105844
Disclosure required. Conceal source grading, information grading, and source compliant. Conceal any information or particular that may identify any person other than the accused.
v. Document 102966
Disclosure not required.
w. Bundle of Documents 1
Disclosure not required of items (i)-(vi). Disclosure required of items (vii), (viii), (ix) and (x).
x. Bundle of Documents 2
Similar observations as (w) above.
Emails (i) and (ii) are not required for inspection. Postal records relating to accused and co-accused to be inspected. Postal records relating to any other person are not required for inspection.
Once the Commissioner has concealed the details required by the directions above, the documents may be inspected by counsel for the accused, and may be copied, provided the documents are not shared beyond the accused, counsel for the accused and instructing solicitors.
Compliance with the directions is stayed for 28 days in order to allow either party to appeal against this ruling.
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[1] See Commissioner of Police Force for the Northern Territory v Cassidy & Anor [2013] NTCA 1 at 6 [15].
[2] Police Administration Act 1978 (NT) s 120C(a).
[3] Llewellyn & Anor v Finn & Anor (1994) 116 FLR 211 at 216.
[4] Llewellyn & Anor v Finn & Anor (1994) 116 FLR 211.
[5] Llewellyn & Anor v Finn & Anor (1994) 116 FLR 211 at 216.
[6] Llewellyn & Anor v Finn & Anor (1994) 116 FLR 211 at 215.
[7] [2013] NTCA 1.
[8] Commissioner of Police Force for the Northern Territory v Cassidy & Anor [2013] NTCA 1 at 6 [15].
[9] Commissioner of Police Force for the Northern Territory v Cassidy & Anor [2013] NTCA 1 at 6 [15].
[10] Ragg v Magistrates’ Court [2008] VSC 1; 18 VR 300 at 323 [96].
[11] The Queen v Spizzirri [2000] QCA 469; 117 A Crim R 101 at 102 [7].
[12] Alister v The Queen [1984] HCA 45 85; 154 CLR 404 at 414 (Gibbs CJ).
[13] The common law formulation is set out in Alister v The Queen. As above at 411 (Gibbs CJ).
[14] Stephen Odgers, Uniform Evidence Law (Thomson Reuters, 14th ed, 2019) at [130.60] and the cases cited.
[15] [2017] NSWCA 54; 95 NSWLR 1 at 24 [85].
[16] Misuse of Drugs Act 1990 (NT) s 25(1)(c).
[17] Misuse of Drugs Act 1990 (NT) ss 24-25; D v National Society for the Prevention of Cruelty to Children [1978] AC 171; [1977] 1 All ER 589.
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