Perish, Anthony v R; Lawton v R [2015] NSWCCA 129

Perish, Anthony v R; Lawton v R [2015] NSWCCA 129

The respondents did not discharge their onus to establish a legitimate forensic purpose, let alone that it was "on the cards" that the material would assist their appeals. Their application rested on assumptions and speculation drawn from a newspaper article, including speculation that a reward was paid to a witness, that Witness A intended to claim or received a reward, and that police had discussed a reward with Witness A before trial. The orders to produce were therefore a fishing expedition and an abuse of process, and were set aside.

Jurisdiction
Australia
Judgment Date
29 May 2015
Procedural Posture
Criminal Appeal; Application to Set Aside Orders to Produce / Procedural Ruling Pending Conviction Appeals
Outcome
Orders to produce set aside.
Legal Topics
['orders to Produce' 'legitimate Forensic Purpose' 'public Interest Immunity' 'reward Money Disclosure' 'abuse of Process']
['evidence' 'criminal Procedure' 'criminal Appeals'] ['orders to Produce' 'legitimate Forensic Purpose' 'public Interest Immunity' 'reward Money Disclosure' 'abuse of Process']

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Procedural Posture

Criminal Appeal; Application to Set Aside Orders to Produce / Procedural Ruling Pending Conviction Appeals

Legal Issues

  1. 1 ['Whether the respondents established a legitimate forensic purpose for orders to produce documents relating to payment of a reward for information in the investigation into the death of Terrence Falconer.' 'Whether the orders to produce should be set aside as an abuse of process.' 'Whether, if production otherwise arose, public interest immunity justified withholding the documents.']

Ratio Decidendi

The respondents did not discharge their onus to establish a legitimate forensic purpose, let alone that it was "on the cards" that the material would assist their appeals. Their application rested on assumptions and speculation drawn from a newspaper article, including speculation that a reward was paid to a witness, that Witness A intended to claim or received a reward, and that police had discussed a reward with Witness A before trial. The orders to produce were therefore a fishing expedition and an abuse of process, and were set aside.

Court Disposition

Orders to produce set aside.

Orders

  • ['The Orders to Produce issued to the NSW Police Service on 1 July 2014 and 4 February 2015 are set aside.']