R v Chamma

1. [1]

   THE COURT: By notice of appeal filed on 10 February 2026, the Attorney-General sought to appeal (pursuant to s 5F(2) of the Criminal Appeal Act 1912 (NSW)), and the Commissioner of Police sought leave to appeal (pursuant to s 5F(3)(a) of the Criminal Appeal Act), an order made by Cavanagh J on 5 February 2026 refusing to excuse the Commissioner from producing documents in response to one paragraph of a subpoena that was served by the accused on the Commissioner of Police. The schedule to that subpoena, it should be noted, contained nine paragraphs but, despite their apparent overlap with the challenged paragraph, no issues were raised about them below or in this Court and production was made by the Commissioner in response to those paragraphs.

2. [2]

   The appeal was brought on urgently, and heard on 11 February 2026, as the Court was advised that the jury was to be empanelled on 12 February 2026, and a witness (Witness G – the subject matter of the paragraph of the subpoena that was sought to be set aside) was proposed to be called by the Crown on 16 February 2026. [1]

The developments after the hearing

1. [3]

   Following argument, given the stated urgency and the fact that the bulk of the appeal material was only provided to this Court either late in the evening on 10 February 2026 or on the morning of the hearing, the Court indicated that it would make orders on 13 February 2026 and that reasons would be provided thereafter. This timing was to accommodate the fact that it was anticipated at that time that Witness G would be called as a witness on Monday 16 February 2026. Subsequently, the Court was advised that the empanelment of the jury had been twice deferred and that it was not anticipated that Witness G would give evidence until Wednesday 18 February 2026.

2. [4]

   Given these developments, the Court indicated to the parties that it proposed to make orders at 2pm on Tuesday 17 February 2026. However, before doing so, the Court was advised on 16 February 2026 that a plea had been offered by the accused and accepted by the Crown in full satisfaction of the indictment and that, following on from this, the accused confirmed that he did not require compliance with the impugned paragraph of the subpoena.

3. [5]

   Upon receipt of that advice, the Court indicated to the parties that, in those circumstances, its preliminary view was that, as the subject matter of the appeal and the controversy between the parties had resolved, the appeal should be dismissed.

4. [6]

   On 18 February 2026, each party was directed to advise as to whether they consented to this Court making an order dismissing the appeal and, if not, to file and serve submissions in support of their opposition to that order being made.

5. [7]

   The accused advised the Court that he consented to the Court making an order dismissing the appeal. However, the Attorney-General and Commissioner of Police opposed the dismissal of the appeal, submitting that the Court should proceed to make orders and provide its reasons for making those orders. The overarching argument made was that the appeal involved an issue of general importance which warranted this Court delivering judgment.

Discussion and consideration

1. [8]

   It is important to emphasise that not only has the immediate controversy resolved between the accused and the Attorney-General (and the Commissioner of Police) about the subpoena, but so too has the wider controversy between the accused and the Crown: the accused has offered, and the Crown has accepted, a plea of guilty to manslaughter in full satisfaction of the indictment. Thus, there are no remaining issues in any relevant sense.

2. [9]

   It follows, therefore, that the questions involved in the appeal are now hypothetical. That is because, as was explained in in Harrington v Rich (2008) 166 FCR 440; [2008] FCAFC 61 at [19] (citing Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; [1999] HCA 9 at [48]-[49] (‘Bass’)), there is an “absence of a ‘concrete situation’”, such that “the orders of the Court in such circumstances ‘[do] not finally resolve the dispute or quell the controversy’”.

3. [10]

   Given that characterisation, a general principle is engaged – namely, that “a Court should refuse to address an advisory opinion in respect of issues of which there is no longer a controversy between the parties”: Bonan v Hadgkiss (2007) 160 FCR 29; [2007] FCAFC 113 at [8] (citing Bass at [47]) (‘Bonan’) (emphasis added). Although this principle has been recognised and applied in the context of civil, not criminal, proceedings, given the universality of its subject matter, there is no reason to think that its application is so confined; on the contrary, we are satisfied that the principle applies equally to criminal proceedings.

4. [11]

   The Attorney-General did not address this principle at all but appeared to rely upon a complementary one – namely, that the Court retains a discretion to determine an appeal in these circumstances. As earlier noted, it was essentially argued that the appeal involved an issue of general importance which favoured a formal determination, notwithstanding the absence of any justiciable controversy to quell.

5. [12]

   It may be accepted that where the subject matter of an appeal has “been rendered moot by reason of a change in circumstances or otherwise”, the Court retains the discretion to determine the appeal (see Bonan at [8], and the authorities there cited). Here, however, contrary to the Attorney-General’s argument, no case for the favourable exercise of the discretion has been demonstrated. That is for the following reasons.

6. [13]

   First, the substantive argument advanced by the Attorney-General in this Court was that the form of the challenged paragraph in the subpoena infringed, directly or indirectly, the “informer rule” – the rule that protects the confidential basis upon which police deal with informers and extends to protecting their identity from disclosure: Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667, 674-675. The nub of the Attorney-General’s argument was that, by the ruling made, the Commissioner would either be entitled to be excused from production if the subject matter of the subpoena required disclosure about whether an individual was an informant, or that the material would need to be produced if that individual was not an informant. On either footing, the Attorney-General submitted, the informer rule would be contravened because, particularly in the latter case, production would serve to confirm that “the next person is an informer”. [2]

7. [14]

   Whilst we accept that the Attorney-General and the Commissioner have a genuine interest in the resolution of the appeal, given it would provide guidance where a similar issue may arise, we regard that fact as an insufficient reason to determine the appeal. To the extent the issue arises on future occasions, it can be “resolved in litigation where [the issue is] real and will have a practical effect in respect of a controversy”: Civil Aviation Safety Authority v Administrative Appeals Tribunal (2001) 33 AAR 439; [2001] FCA 1319 at [17].

8. [15]

   In so concluding, we have not overlooked the “high importance” that the law attaches to the protection of the identities of police informers: Director of Public Prosecutions (DPP) v Smith (1996) 86 A Crim R 308, 312. However, whether similarly worded subpoenas have been served on other occasions is unknown, and the absence of evidence on that topic does not enable this Court to meaningfully assess whether wider public policy considerations favour this Court determining the appeal. In this last respect, it may be noted that the only decision that the parties were able to draw to the Court’s attention which dealt with a somewhat similar issue was a decision from the District Court of South Australia in 2006 [3] and, further, during the course of argument, the Attorney-General accepted that it was “[q]uite rare” for a subpoena to be served in the form in question. [4]

9. [16]

   Secondly, in relation to the argument that the determination of the appeal would provide guidance on the interplay between similar facts and s 130 of the Evidence Act 1995 (NSW), the same reasoning applies that underpins our first reason; namely, that issue can be resolved in proceedings where it arises.

10. [17]

    Thirdly, the Attorney-General argued that, notwithstanding these developments and the stance of the accused in relation to the subpoena, the Commissioner of Police was still required to comply with this subpoena unless and until it is set aside, and that this obligation favoured – indeed required – this Court to determine the appeal in the present circumstances. We disagree. There is no basis to suggest that the Commissioner is, in the present circumstances, required to respond given what has developed, and, to the extent that the Commissioner considers otherwise, he should relist the matter before Cavanagh J to have orders made in relation to the relevant paragraph of the subpoena, given no forensic purpose could possibly remain for a response to it.

11. [18]

    The appeal by the Attorney-General, and the application for leave to appeal by the Commissioner of Police, should be dismissed.

Orders

1. [19]

   For the above reasons, we make the following orders:

   1. (1)

      Dismiss the appeal by the Attorney-General.

   2. (2)

      Refuse the Commissioner of Police leave to appeal.