Attorney General (NSW) v Stuart

During a committal proceedings defence counsel cross-examined an investigating police officer about consecutive entries in his notebook. It appeared that one entry contained information given by the person interviewed that led to the arrest of the defendant. The other entry contained details personal to the person interviewed. Counsel asked whether the persons interviewed were the same person. Counsel representing the Commissioner for Police raised a claim of public interest immunity, observing that any answer to the question might enable the identification of the police informer. Counsel relied on the statement of a senior police officer, which annexed an affidavit, and upon a confidential statement. The magistrate overruled the objection, observing that the material relied on did not meet the requirements of the Court or of the Evidence Act. Counsel sought an adjournment overnight so that further material might be obtained which the Court might consider acceptable. The application was refused. Counsel then sought an adjournment of at least half an hour to enable an application to be made to a judge of the Supreme Court. That application also was refused.

HELD: That the magistrate erred in allowing the question to be asked and in requiring it to be answered, in refusing to adjourn the hearing to allow further material to be put before the Court, in refusing to adjourn the hearing to permit her rulings to be reviewed and in her observations about the formalities necessary to substantiate a claim of public interest immunity. Evidence Act 1995, S130 discussed.

60500/01 Ipp AJA Hidden J Barr J

1 February 2002 Attorney General v Harry Charles FANDAKIS

Judgment 1 Ipp AJA: I agree with Barr J. 2 Hidden J: I agree with Barr J. 3 Barr J: This is an appeal by the Attorney General under s.5F Criminal Appeal Act against interlocutory judgments or orders made during committal proceedings in the Local Court. The respondent to the appeal was the defendant in the Local Court. 4 Acting on information received, police officers executed a search warrant at certain premises. Not long afterwards the respondent was arrested and charged with having knowingly taken part in the cultivation of a prohibited plant, namely a number of cannabis plants. One of the investigating police officers was Senior Constable Soras. At the Local Court the Commissioner for Police ("the Commissioner") produced on subpoena photocopies of certain pages of Senior Constable Soras' official police notebook. 5 It appeared from entries in the pages produced that on the evening of 21 April 1998 Senior Constable Soras had spoken to a man and had arrested him on six first instance warrants and for the offence of driving whilst disqualified. It also appeared that in the early hours of the following day Senior Constable Soras spoke to a man after the man approached him and offered to help the police. The man made a substantial statement of fact which was recorded in the notebook. The page entries for both occasions were heavily blacked out. The name of the man first spoken to, as well as any particulars that might help in his identification, had been obliterated. The second entry had been treated in the same way and no part of the statement made on that occasion was legible. Those obliterations made it obvious to defence counsel that the investigating authorities wished to keep confidential the identity of the person Senior Constable Soras had spoken to on each occasion. It was also obvious to defence counsel, at least from evidence elicited at the hearing, that in deciding to requisition and execute the search warrant the investigating police were acting on information supplied by an informer. 6 Defence counsel wished to cross-examine Senior Constable Soras on the state of his knowledge at the time the search warrant was executed and about how he came by that knowledge. For the purposes of this appeal it does not matter whether or why it was relevant for him to ask such questions. 7 Present in Court was a barrister representing the Commissioner. Defence counsel asked Senior Constable Soras whether the person whose particulars had been recorded in the notebook entry for 21 April 1998 but obliterated from the copy pages produced was the same as the person whose particulars were obliterated from the entries made on 22 April 1998. Senior Constable Soras said that he claimed privilege. Counsel for the Commissioner also objected and made a claim for public interest immunity. He referred to the contents of an affidavit, incorporating a confidential statement, made by a senior police officer. He put forward reasons why Senior Constable Soras ought not to be required to answer the question. The magistrate rejected the claim. Counsel requested the magistrate to defer ordering Senior Constable Soras to answer the question so that the decision could be tested on appeal or to allow the Commissioner to provide additional evidence overnight, enabling further consideration to be given to the matter on the following morning, or to allow time to seek orders from the Supreme Court. The magistrate rejected each of those applications and required the evidence to continue. The question objected to was answered. 8 The terminology used in the Local Court varied. Sometimes a question was objected to, sometimes a claim for privilege was made and sometimes a claim for public interest immunity. What the objectors desired was the exclusion of evidence under s.130, Evidence Act 1995. The section is in the following terms - 130. Exclusion of evidence of matters of state (1) 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. (2) The court may give such a direction either on its own initiative or on the application of any person (whether or not the person is a party). (3) In deciding whether to give such a direction, the court may inform itself in any way it thinks fit. (4) Without limiting the circumstances in which information or a document may be taken for the purposes of subsection (1) to relate to matters of state, the information or document is taken for the purposes of that subsection to relate to matters of state if adducing it as evidence would: (a) prejudice the security, defence or international relations of Australia, or (b) damage relations between the Commonwealth and a State or between 2 or more States, or (c) prejudice the prevention, investigation or prosecution of an offence, or (d) prejudice the prevention or investigation of, or the conduct of proceedings for recovery of civil penalties brought with respect to, other contraventions of the law, or (e) disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State, or (f) prejudice the proper functioning of the government of the Commonwealth or a State. (5) Without limiting the matters that the court may take into account for the purposes of subsection (1), it is to take into account the following matters: (a) the importance of the information or the document in the proceeding, (b) if the proceeding is a criminal proceeding---whether the party seeking to adduce evidence of the information or document is a defendant or the prosecutor, (c) the nature of the offence, cause of action or defence to which the information or document relates, and the nature of the subject matter of the proceeding, (d) the likely effect of adducing evidence of the information or document, and the means available to limit its publication, (e) whether the substance of the information or document has already been published, (f) if the proceeding is a criminal proceeding and the party seeking to adduce evidence of the information or document is a defendant---whether the direction is to be made subject to the condition that the prosecution be stayed.

(6) A reference in this section to a State includes a reference to a Territory.

9 The Attorney General sought a number of declarations and orders on appeal the effect of which was as far as possible to uphold counsel's claim and to restore the status quo. I shall deal with the orders later in this judgment. 10 The issues raised are appropriate to be determined on an appeal under s 5F: Attorney General (NSW) v Stuart (1994) 34 NSWLR 667; Attorney General (NSW) v Smith (1996) 86 A Crim R 308. 11 In order to provide an understanding of what led up to the magistrate's refusal of counsel's requests it is necessary to say something about the history of the matter. 12 Another person arrested at about the same time as the respondent was a man called Michael Chriss. He pleaded guilty to a charge or charges arising out of the events which gave rise to the charge brought against the respondent. His sentence was reduced because he undertook to give evidence against the respondent. During the committal hearing on 11 December 2000 Senior Constable Zoras was asked about attempts the police had made to find Chriss and whether Chriss had received a lighter sentence because of any offer to give evidence against the respondent. Senior Constable Zoras claimed privilege and the questions were not pressed. Counsel asked him whether Chriss faced the risk of an increased sentence if he failed to give such evidence. Senior Constable Zoras asked for and obtained an adjournment so that he could get advice about whether to answer the question or make a claim for public interest immunity. 13 The hearing continued on the following day and the Commissioner was represented by Mr Barrie of counsel. Counsel for the respondent asked Senior Constable Zoras this question - Did Michael Chriss give you any information in reference to any other matter not associated with the raid? 14 An objection was taken and discussion ensued. The magistrate granted counsel for the Commissioner a short adjournment but before doing so said - Well it seems to me then it's important to have comments of the sentencing judge. On reflection, I must say in respect of this particular question in the form in which it's posed to the witness I would allow it, it doesn't have to go any further than that. I will allow it to that extent, a yes or no answer. 15 On resumption s 130 Evidence Act was discussed in detail and the magistrate concluded with these remarks - Now, it seems to me, what we require now, before we go any further with these matters, is in fact an affidavit, Mr Barrie, and the sooner we have that the better. 16 The matter was not resolved on that day but was fixed for 22 December 2000 for the purpose of resolving the issue of public interest immunity. 17 On that occasion Mr Barrie tendered a statement which annexed a copy of an affidavit but the magistrate rejected it as unsatisfactory, remarking that it did not meet the requirements of the court or of the Evidence Act. The committal was adjourned. 18 The hearing resumed on 28 May 2001. On that occasion counsel for the Commissioner and the magistrate disagreed whether on the previous occasion the magistrate had made a ruling about the issue. It would appear, though the transcript is not entirely clear, that counsel asked for leave to file an affidavit pressing the claim for public interest immunity. Leave was refused. Counsel then asked for an adjournment and the following exchange occurred - Barrie: My application is your Worship the matter be adjourned. I have received instructions to appeal against your Honour's ruling. Bench: You can go and do that but I'm not adjourning these proceedings until there's some ruling from the Supreme Court and that's it.

Barrie: Yes, well that's my application your Worship.

Bench: Fine, the application is dismissed thank you. 19 Application was made to the Common Law division of the Supreme Court and Adams J made an interim order preventing disclosure of the information the subject of the immunity claim. Not long afterwards the committal hearing resumed and Mr Barrie handed up to the magistrate a summons and informed the court that the Supreme Court had made orders in accordance with the summons, which would remain in force until 1pm on the following day. Counsel informed the magistrate that the matter had been relisted in the Supreme Court at 11 o'clock on the following morning. Mr Barrie did not have a copy of the Supreme Court order. The magistrate refused, without seeing such a document, to accept that the Supreme Court had indeed made orders in accordance with the summons. The hearing continued. 20 The precise terms of the interim order made by Adams J were not put before this Court. There was no suggestion that anything thereafter done by counsel for the respondent was in breach of any order. 21 There were these questions and answers during the cross-examination of Sergeant Jamieson - Q. Apart from being before the Court your investigation in this matter is complete? A. Yes. Q. And there is no other person that you anticipate charging in this matter is there? A. No.

Q. Still at large? A. I don't believe so. Q. Therefore there is no harm in you telling us at what time it became apparent to you that Mr Fandakis was a person of interest and how he came to your attention is there? There can be no harm at all to anybody? A. Well there is because the sources of information that we use still could be ongoing and to protect that source, I claim privilege on the answer.

Q. Don't tell me who told you but when did they tell you? A. Well that they put a time and date in relation to certain sources I wish to claim privilege in respect of that as well. 22 Counsel for the respondent submitted that the privilege claim should not be upheld and without inviting counsel for the Commissioner to respond the magistrate agreed, saying - Nothing I can see in the provisions set out in section 130 (4) and (5) which set out the various criteria or considerations or circumstances in which the - to which the Court should have regard as to the time at which the offender became a person of interest, Sergeant. Having regard to the question and for that matter what you have just stated with respect to a claim of privilege, I am directing you to answer the question to the best of your ability. 23 Sergeant Jamieson answered - I can't recall the exact time. 24 The hearing was adjourned part-heard to the following day. The magistrate granted an adjournment to allow counsel for the respondent to attend the Supreme Court. There the matter was resolved without any formal order upon counsel for the respondent's giving undertakings not to ask certain questions. The result was announced to the magistrate later on the same day and the hearing was adjourned part-heard to 18 July 2001. 25 On that day Mr Singleton of counsel appeared for the Commissioner. Senior Constable Soras was again giving evidence and was cross-examined about a search he had conducted at the premises. There were the following questions and answers - Q. But you were brought to that location because someone made a phone call concerning the existence of a number of vehicles on the lower ground is that correct? A. That's not correct.

Q. Well how did you come to be at that property can you tell us? A. As a result of information which I had received.

Q. And what information was that? 26 Counsel for the Commissioner intervened to take an objection. The intervention was not welcomed by the magistrate and, after counsel had made plain that his objection was born of a concern that an answer to the question might provide information which would help to identify an informer, said - Let me make it very clear to you Mr Singleton and you can take this back to your superiors if you wish. I consider these objections taken and the intrusion, intervention, intrusion is an appropriate term in the circumstances - the intervention of the Police Commissioner in this respect to be most unseemly. I have dealt with numerous cases over many years where the claim of privilege that is now being made has been made quite appropriately and I have been very happy to grant it. 27 Referring to the proceedings on the previous occasion and the application to Adams J, the magistrate said - On that occasion, however, I noted that the defence gave certain undertakings about the course of cross- examination that would be carried out and thus far I've heard nothing which deviates from that. I'm not at all impressed by pre-emptive strikes. If the circumstances arise then an objection might be rightly taken but until they do, please don't interfere with the due processes that are taking place. Now do I make myself clear to you. 28 When the magistrate finished speaking counsel for the Commissioner proceeded with his application. He tendered an affidavit of Deputy Commissioner Moroney which exhibited a confidential statement. Following further discussions the magistrate concluded that the question asked did not raise matters of public interest immunity and ruled accordingly. The magistrate continued - And let me say once more at the risk of boring myself, if there were circumstances arising which properly found an objection on the grounds of public interest immunity, then I would be entertaining them. But so far that circumstance has not arisen in this case and that's it. If you wish I will retain these documents and I will keep in mind the matters that are contained in the confidential statement. But as far as I can see they in no way impinge upon the matter that we are dealing with here. If as I said earlier there is any chance that the line of cross-examination, or for that matter, any other examination, would lead to any of these matters being disclosed then I would certainly stop the party conducting the examination at that point. 29 The question in respect of which Mr Singleton had made his claim was never answered, but the cross-examination continued. Senior Constable Soras' notebook entries about the man spoken to on 21 April 1998 were contained on pages, 16, 17, 18 & 19 of the notebook. The details of the conversation on 22 April 1998 were contained on pages 20, 21, 22 & 23. The latter half of page 21 and the whole of pages 22 & 23 were obliterated. 30 The cross-examination of Senior Constable Soras continued - Q. Now looking at page 16 & 17, there's an entry, 7:30pm 21 April 1998, you see that? A. Yes. Q. And it's all blacked out and it's got licence No, I presume number, date of birth, DOB, then Ph which I take to mean phone? A. Mm.

… Q. If you look at page 17 it suggests that the person you are talking to is arrested as a result of six first instance warrants. If you turn to page 18 it suggested that the person was arrested on that day? A. That's correct. Q. Page 18 and 19 does that appear to be connected with the investigation of this matter? A. No Q. It appears that these things are matters which are personal to the person you arrested. Is that correct? A. That appears to be the case yes. 31 The magistrate apparently misunderstood the significance of this evidence. Although the information on pages 18 and 19 of the notebook was not relevant to the charges against the respondent, the identity of the person who supplied it was relevant. So much was made plain by the questions which followed and which are the subject of these proceedings. They were - Q. Then we turn to page 20. On 22 April 1998 the person of interest at 2.1 approached you, is that correct? Is that the same person that was arrested on 21st? A. I claim privilege on that. Q. I'm not asking you to tell me the identity, I'm just asking you whether it's the same person? 32 Objection was taken by counsel for the Commissioner. The magistrate's response, apparently based upon a misunderstanding that the effect of the evidence was that the person referred to as having been arrested had no connection with the case, was to allow the question. Counsel submitted that the magistrate may have misunderstood the true effect of the evidence but sought an adjournment so that he could obtain precise instructions to make sure that he himself had not misunderstood. The adjournment was granted, and on resumption counsel pressed his objection. He submitted that an answer to the question might enable the identity of a police informer to be ascertained. 33 The magistrate declined to uphold the objection and said - Thank you Mr Singleton. I have heard you and I can indicate to you now that I am ruling against you. I have heard the live inquiry. I have heard the original questions that were put to Constable Zoras and whose (sic) responses to matter contained in his notebook. Thank you. 34 The following exchange then took place - SINGLETON: I ask your worship to adjourn the proceedings to enable your decision to be tested on appeal to the Court of Criminal Appeal. BENCH: Well as I said to your predecessor in these matters, Mr Barrie, I'm not going to adjourn these proceedings. If you wish to go and make such an application, you can do so. 35 Counsel handed to the magistrate a copy of the judgment in Alister v The Queen (1984) 154 CLR 404 and made submissions based on that case. Counsel then said this - …I can indicate an alternative, hopefully practical avenue also comes to mind, and that is for an affidavit on this precise question to be prepared overnight and made available to your Worship in the morning. I offer that as an alternative to my friend and to the Court. It may be that in the light of that affidavit, your Worship might be in a position to review the matter then.

Legal discussion continued and the magistrate said this - Thank you, Mr Singleton, you are fully aware of what avenues are open to you in respect of that matter and I will not adjourn these proceedings at this point. Thank you very much. 36 Finally counsel asked the magistrate to defer the question for at least half an hour so that he could get in touch with the Duty Judge in the Supreme Court. The magistrate refused and counsel withdrew. 37 The cross examination continued and during the course of it the magistrate asked this question. Q. You have been specifically referred to aspects of the entry that you made in your notebook. You answered in the affirmative when your attention was drawn to that specific notation that you made, and you are now being asked is it the same person who approached you at 2.10am on 22 April. The answer is quite straight forward, yes or no. Which is it? 38 The question was directly answered. 39 The common law recognises that a court has both the power and the duty to prevent the production or use of a document when it would be injurious to the public interest to do so. The obligation to protect the public interest is imposed on a court even if the proper procedure for objection has not been taken. The court, as much as the Crown or a body representing the Crown, must be alert to the need to identify and protect the document: Sankey v Whitlam (1978) 142 CLR 1 at 44; Young v Quin (1985) 4 FCR 483. 40 In Duncan v Cammell, Laird & Co Ltd [1942] AC 624 at 641-642, Simon LJ made plain that public interest immunity "is a rule on which the judge should, if necessary, insist even though no objection is taken at all." 41 When questions of public interest immunity arise during the course of oral evidence the court must exercise great care to ensure that the public interest is not compromised. It may at times be difficult to appreciate the significance of some questions and care must be taken to understand the limits and potential consequences of any answer. Although a court is entitled to expect assistance from counsel who objects on public interest grounds the court must be alert, if necessary, to explore and assess the matter for itself. 42 S 130 Evidence Act 1995 now provides the statutory foundation for a claim of public interest immunity. Although in many cases a claim is formally made and affidavit evidence tendered in support of it, this is not essential. The section does not require it: cf subs (3). Indeed, it may often be the case that when a question of public interest privilege arises, affidavit or other formal evidence may not be available and the court may have to act upon its own understanding of the issue or on information provided by counsel or by some other person not a party to the proceedings. It can never be the case that the application is refused merely because affidavit evidence is not available. Furthermore, in circumstances where counsel appears for the executive government and objects to a question claiming public interest immunity and seeks an opportunity to adduce evidence to support it a court is, in my opinion, duty bound to provide that opportunity: Young v Quin. 43 In the present case the matter giving rise to the claim was the possible identity of a police informer. A claim on that basis is expressly recognised by s 130(4)(e) and raises issues of significance going to the ability of the authorities to investigate and prosecute offences and to provide for the safety of those who provide the authorities with information. The significance of a claim to protect the identity of an informer was emphasised in Attorney General (NSW) v Smith. For the purposes of subs (1), where the subject matter of the claim is the identity of a police informer, the public interest in admitting the information or document into evidence is outweighed by the public interest in preserving its security or confidentiality, except where disclosure could help to show that the accused is not guilty. 44 In these circumstances the magistrate was bound to provide an opportunity to the Commissioner to bring further affidavit evidence, if that was what he wished to do, following a short adjournment. 45 Having ruled against the objection taken by the Commissioner and having declined the application for a short adjournment, the magistrate also declined to grant an adjournment to allow the rulings to be tested in this court. That approach was taken notwithstanding that the High Court of Australia has stated that in such circumstances the duty of the court is to defer the enforcement of its ruling until an opportunity has been provided to test it. It could hardly be otherwise, for the utility of any appeal might otherwise be lost. 46 During the debate, counsel for the Commissioner read to the magistrate this passage from the judgment of Gibbs CJ in Alister v The Queen - In the present case the trial judge, Lee J was faced with a difficult decision. His difficulty was made the greater by the fact that if he had decided to inspect the documents it would have been his duty to defer making an inspection to give the Attorney General an opportunity to test his decision on appeal if he wished to do so, notwithstanding the inconvenience that would result from interrupting the trial in that way: see also Sankey v Whitlam (1978) 142 CLR 1 at 43; Burmah Oil Co Ltd v Bank of Englan d [1980] AC 1090 at 1136 and Conway v Rimme r [1968] AC 910 at 953.

47 The magistrate's decision to decline to grant an adjournment to allow the ruling to be tested was itself a ruling made in error. 48 The Attorney General submits that beyond those matters of procedure the magistrate erred by requiring the answer to given. Before this Court the affidavit of Mr Moroney of 20 August 2001 was read. The Court saw the confidential statement. It was evidence which would have been before the Local Court if the correct procedure had been followed. 49 From this material and an examination of Senior Constable Zoras' notebook it is plain that the question asked was likely to elicit an answer which would tend to identify the informer. Some persons would immediately know who the person was and others may with further information be able to find out. At the very least the answer was likely to provide significant information which, together with other information, could be used to identify the informer. There being no competing interest, the public interest required rejection of the question: see Attorney General (NSW) v Smith at 313; Attorney General (UK) v Bryant (1846) M&W 168 at 170-171. 50 As I have indicated, the magistrate seems to have approached the decision from a fundamental misconception about the evidence. Although much of the material in the notebook relating to the person arrested on 21 April 1998 was of no relevance, the reason why he had been apprehended was clearly capable of assisting in his identification. If the question were answered "Yes" the answer would help to identify the person directly. If "No" it would narrow the possibilities. In either case, the high level of protection which the law affords to the identity of police informers would be lost. 51 Although the question was answered it was not suggested that intervention by this Court was of no utility. There is no evidence before us which would indicate that the answers given are known to anyone other than those present in court on the day. It could not be said that the information revealed was in the public domain: Attorney General (NSW) v Smith at 313. 52 I am satisfied that the appeal should be allowed. 53 The Attorney General originally sought various declarations and substantive orders, though some were abandoned at the commencement of the hearing. I see no utility in making declarations of error. The errors in the conduct of the matters relating to public interest immunity have been identified in these reasons. However, the substantive orders which were not abandoned are appropriate. Accordingly I propose that the Court make the following orders - 54 1. Allow the appeal. 2. Set aside the orders appealed from and order in lieu - (i). That the witness Jim Zoras be not required in the proceedings below to testify whether or not the person whose personal details are recorded on page 20 of his police notebook F202195 (some of which details are masked by black ink in a photocopy of the notebook shown to him) was the person whose details are recorded on page 17 of his police notebook (some of which details are also masked by black ink in the photocopy of the notebook shown to him). (ii). That the record of the Local Court at Sydney be stricken of the answers given by the witness Jim Zoras in response to questioning about whether or not the person whose personal details are recorded on page 20 of his police notebook F202195 (some of which details are masked by black ink in a photocopy of the notebook shown to him) was the person whose details are recorded on page 17 of his police notebook (some of which details are also masked by black ink in the photocopy of the notebook shown to him). ******

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