Derbas v R

Does the common law or the Evidence Act apply to the claim to public interest immunity? 6The primary judge dealt with the claim for public interest immunity by reference to the common law. The Attorney submitted that the claim should have been determined by reference to the provisions of Part 3.10 of the Evidence Act 1995. The Attorney also submitted that nothing turned on this point, because, it was submitted, s 130 of that Act reflects the common law position. In my view, for the reasons which follow, the primary judge was correct to address the application for immunity by reference to common law principles. 7The application for immunity from production was made in respect of documents required to be produced to the District Court pursuant to a subpoena to produce addressed to the Registrar of the Local Court of New South Wales at Mt Druitt and issued at the request of the Accused in the proceedings R v Derbas . In accordance with the terms of that subpoena, that Registrar produced to the District Court documents, which included the Application. The Commissioner sought leave to be heard in those proceedings and, by notice of motion filed on 2 December 2010, sought orders that access to the Application not be granted to either party to the proceedings. 8Thus, the question before the primary judge was whether inspection should be permitted to a document produced to the District Court by the Registrar of the Local Court at Mt Druitt. The question was not whether that document should be admitted into evidence in the proceedings or in any application in the proceedings. Therefore, s 130 did not in its terms apply. Nor did s 131A operate to require the primary judge to determine the Commissioner's objection by applying the provisions of s 130. That is because s 131A only applies if the "person" required to produce the document is "the person" who objects to the provision of the document or giving of information: s 131A(1)(a), (b). In State of New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60 at [26]-[32] the person producing documents by way of discovery (the Public Transport Ticketing Corporation) and the person making the claim for immunity (the State) were distinct juristic entities, with the result that ss 130 and 131A were not engaged. That is also the position here. The person producing the documents (the Registrar) and the person making the claim for immunity (the Commissioner) were not the same.

The relevant circumstances 9Before addressing the grounds on which the Attorney challenges the decision of the primary judge, it is necessary to summarise the relevant circumstances. 10Immediately before the warrant to search the Accused's home was applied for, the police had executed a search warrant at the home of the Accused's cousin, Shadi Derbas, which was also in Telopea Street, Punchbowl. 11The cocaine and firearms found at the Accused's home were in a shoebox and inside a bag which was in the Accused's bedroom. During the execution of the search warrant and subsequently in an electronically recorded interview, the Accused made a number of admissions. Specifically, he stated that the cocaine was for his "personal use" and that the firearms had been stored in the bedroom for various periods of between six months and one year. 12The charges brought against the Accused, following the discovery of those items, include supplying a prohibited drug (cocaine) contrary to s 25 of the Drug Misuse and Trafficking Act 1985. The deeming provision in s 29 is relied upon for that offence. Accordingly, if the Accused is shown to have possessed more than a traffickable quantity, to successfully defend the charge he must prove that he possessed the cocaine "otherwise than for supply": R v Carey (1990) 20 NSWLR 292. 13Before the primary judge, counsel for the Accused outlined his client's defences as follows (at [12]): " · The accused did not know what was in the bag; · He was forced several days before the search to temporarily hold the bag by his cousin, Shadi Derbas; · The admissions were false; · The admissions were made because of the accused's fear of Shadi Derbas, a well known and dangerous criminal; and · That it is known to the investigating Police that the admissions are false." 14The evidence said to be available to support the Accused's contentions was summarised by the primary judge (at [17]): " · The police told the accused and his solicitors that they would be prepared to give evidence that he was holding the bag for Shadi. They would not have agreed to that unless they believed it. · There is forensic evidence on the goods found which is linked to Shadi Derbas. There is no forensic evidence linked to the accused. · There is also forensic evidence linked to one of the Dib brothers. It seems that the police believe that Shadi Derbas obtained the goods, or some of them, from one or more of the Dibs. · The ammunition in the bag found in the accused's home is suitable for a gun found at Shadi Derbas's premises. · The ammunition in the bag was in a green sock. The matching sock was noted to be at Shadi Derbas's house. · The police accept that Shadi Derbas is dangerous and that the accused and his family were being threatened. Such a scenario would only arise in circumstances where Shadi Derbas was the source of the illicit material. · The accused, a fully employed butcher, is in a position to adduce evidence of good character. · Evidence would be adduced from the police that a modus operandi of the 'Telopea Street Boys', a Middle Eastern organized crime group of which Shadi Derbas is a senior member, was to have people like the accused hold illicit material." 15A number of these matters had been communicated to the Accused's solicitor by Detective O'Neill or a Detective Ryan Jeffcoat. The primary judge set out (at [19]) excerpts from the conversations in which that occurred.

Evidence admitted by leave on the appeal 16Subsequent to the decision of the primary judge and before the hearing of this appeal, two signed statements of Detective O'Neill were provided to the Accused. Those statements set out what Detective O'Neill was told, by a "confidential police source", which led to the application for the issue of a warrant to search the Accused's premises. His statement of 8 June 2011 includes the following: "10. On the 23 November [2008], I was given information from a confidential police source to the effect that: a. two firearms and an amount of cocaine were stored at [No.] Telopea Street Punchbowl; b. the items were stored there as a security measure to minimise the loss to the items' owners if police searched a home within the street; c. the items were stored in the accused bedroom; and d. the items were not owned by the accused at any time. I will refer to the information in sub paras. (a) - (d) above in this statement hereon as 'the information'. I believed the information to be accurate. 11. As a result of the information, I applied for a search warrant for [No.] Telopea St Punchbowl at 4.30am on 23 November [2008]. At no time, including at the time when I was given the information referred to in para.1, was I given any specific information by the confidential source about the accused state of knowledge that firearms and cocaine ('the illicit goods') were stored at the accused premises. I am also not aware of any police intelligence about his state of knowledge. I also wasn't given any information about how long the illicit goods had been stored at the accused premises. 12. I am aware, from both my experience outlined above and from my knowledge of police intelligence, that one of the methodologies used by the owners of illicit items (such as firearms and illegal drugs) on Telopea Street is the 'safe house' methodology. That methodology typically involves the following steps: a. illicit items, such as illegal drugs and firearms, are stored on the street in the house of someone other than the owner; b. that house is usually a house close to the owner's house so that the items can be quickly accessed if needed urgently. This is particular so in the case of firearms; c. that house is also usually the house of an occupant or occupants who are not well-known to police as being actively involved in organised criminal activities; and d. the illicit items may be, but are not necessarily, moved around between houses for protection of the items. 13. I believe that this is precisely the methodology that was adopted in this case, leading to the accused having the illicit goods in his possession and the discovery of the illicit goods when the search warrant was executed." 17Paragraph 4 of his statement of 1 July 2011 says: "4. On 23 November 2008, I was given information by a confidential source as referred to in my statement dated 8 June 2011. On the basis of the information provided to me by the confidential source and on the basis of confidential police intelligence, I believe that: a. Shadi Derbas was given the responsibility for holding drugs and firearms (together, 'the illicit goods') but he did not own them. b. The illicit goods were given to Shadi to store by two other people (one of whom was a resident of Telopea Street and the other of whom was a frequent visitor to the street). c. Shadi Derbas divided the illicit goods as a security measure, consistent with para. 10(b) of my statement dated 8 June 2011. d. The accused was given some of the illicit goods to store by Shadi Derbas but the accused did not own them." 18Those two statements were admitted by leave under s 5F(4) of the Criminal Appeal Act 1912 as additional evidence able to be considered by this Court in the event that it concluded that the primary judge had erred and was required to make its own ruling on the question of immunity pursuant to s 5F(5)(b).

The grounds of appeal 19The Attorney relies upon two grounds of appeal. The first is that the primary judge erred when conducting the balancing exercise required for the purpose of determining whether any part of the Application should be disclosed. It is said that the primary judge did not address what assistance the disclosure of the identity of the police informer would be to the Accused in answering the case against him. It is also said that, when undertaking that balancing exercise, the primary judge had regard to irrelevant matters including the potential consequences to the police informer of his or her identity being disclosed: see confidential [43]-[45]. The second ground is that the primary judge erred, before undertaking that balancing exercise, in not requiring further evidence of matters which he regarded as relevant but about which he was not satisfied on the evidence led by the Commissioner: see confidential [41].

Relevant principles 20The general principle was stated by Gibbs ACJ in Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1 at 38-39. "The general rule is that the court will not order the production of a document, although relevant and otherwise admissible, if it would be injurious to the public interest to disclose it. However the public interest has two aspects which may conflict. These were described by Lord Reid in Conway v. Rimmer (43), as follows: 'There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done.' It is in all cases the duty of the court ... to decide whether a document will be produced or may be withheld. The court must decide which aspect of the public interest predominates, or in other words whether the public interest which requires that the document should not be produced outweighs the public interest that a court of justice in performing its functions should not be denied access to relevant evidence. In some cases, therefore the court must weigh the one competing aspect of the public interest against the other, and decide where the balance lies." 21As is pointed out in Alister v The Queen [1984] HCA 85; (1984) 154 CLR 404, where a party seeks the production of and access to documents in respect of which a claim to immunity is made, the party seeking access first must demonstrate a legitimate forensic purpose for having the documents produced. It is only in the event that such a purpose is demonstrated, that both aspects of the public interest require consideration by the undertaking of the balancing exercise and, when doing so, the Court may inspect any documents produced: Alister v The Queen at 412, 414, 438-439, 456; Air Canada v Secretary of State for Trade [1983] 2 AC 394 at 436, 439; R v Saleam (1989) 16 NSWLR 14 at 18-19; Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667 at 675-676, 681, 690. 22It has long been recognised that there is a public interest in the protection against disclosure of the identity of police informers. The leading English cases include Marks v Beyfus (1890) 25 QBD 494 and D v National Society for the Prevention of Cruelty to Children [1978] AC 171. In the latter case the practice which had developed by the time of Marks v Beyfus was described as having hardened "into a rule of law" that the informer's identity should not be disclosed "except where upon the trial of a defendant for a criminal offence disclosure of the identity of the informer could help to show that the defendant was innocent of the offence": per Diplock LJ at 218. 23In Cain v Glass (No. 2) (1985) 3 NSWLR 230, McHugh JA (with whom Kirby P agreed on this question) said of that rule (at 248): "... the courts in this State should continue to apply the rule that no question of weighing competing public interests arises when a claim is made that the name of a police informer should be disclosed. The rule is absolute and is relaxed only 'where upon the trial of a defendant for a criminal offence disclosure of the identity of the informer could help to show that the defendant was innocent of the offence'. I have stated the exception in the language of Lord Diplock in D v National Society for the Prevention of Cruelty to Children (at 218). In the same case Lord Simon of Glaisdale said (at 232) that the sources of police information 'must be forthcoming when required to establish innocence in a criminal trial." Priestley JA considered (at 242-243) that the court was still required to undertake a balancing exercise of the competing interests. 24As this passage from McHugh JA's judgment shows, the exception to the informer rule has been described in different ways. In Marks v Beyfus Lord Esher MR (with whom Lindley LJ agreed) described it (at 498) as being that disclosure should be made where the judge is of the opinion that "it is necessary or right in order to shew the prisoner's innocence". Bowen LJ (at 500) said the exception applied when the judge "saw that the strict enforcement of the rule would be likely to cause a miscarriage of justice" because of the risk of innocent people being convicted. 25In DPP v Smith (1996) 86 A Crim R 308 this Court said (at 311-312) with reference to these cases that there was powerful authority for the proposition that, at common law, when a claim for immunity from production is made in respect of the identity of a police informer, the court before whom the claim is made does not undertake for itself, afresh, a balancing exercise, weighing one interest against the other because that balance has already been struck and is reflected in the various statements of the exception to the rule. 26As this Court also noted in DPP v Smith , there are contrary views as to the extent to which a weighing of the competing interests is still required when a claim is made to protect the identity of a police informer. Those contrary views have been stated in this Court: see R v Meissner (1994) 76 A Crim R 81 at 88; and in other intermediate appellate courts: see Jarvie v Magistrates Court of Victoria at Brunswick [1995] 1 VR 84 at 89-90; R v Werner Paul Roberts [2004] VSCA 1; (2004) 9 VR 295 at [103]; Haydon v Magistrates Court of South Australia [2001] SASC 65; (2001) 87 SASR 448 at [13]-[18]; R v McKelliff [2004] SASC 63; (2004) 87 SASR 476 at [20]-[27]; and Australian Securities and Investment Commission v P Dawson Nominees Pty Ltd [2008] FCAFC 123; (2008) 247 ALR 646 at [22]-[28]. It is not necessary in this case to resolve these different views because on either approach the primary judge erred in the exercise he undertook. 27As Doyle CJ notes in Haydon v Magistrates Court of South Australia (at [17]), on either approach the court is required to make an assessment of the significance to the defence case of the material which identifies the police informer and the need to disclose his or her identity. In DPP v Smith (at 311-312) the rule was described as requiring non-disclosure except where disclosure could help show that the accused is not guilty. In Jarvie v Magistrates Court of Victoria , Brooking J considered (at 89-90) that the balance would incline in favour of disclosure once it was demonstrated that "there is good reason to think that disclosure of the informer's identity may be of substantial assistance to the defendant in answering the case against him". The latter formulation was adopted in R v Meissner at 88; R v Mason (2000) 77 SASR 105 at [36]-[45]; Haydon v Magistrates Court of South Australia at [29]-[31], [118]; and R v McKelliff at [26]. 28An assessment of the significance of the material which identifies the police informer directs attention to why disclosure is required to avoid the likelihood of substantial prejudice to the accused. The circumstances in which that may be the case include that mere disclosure of the identity of the informer will help to show that the accused is innocent, that disclosure is necessary to adduce evidence of information which will help to show that the accused is innocent and that disclosure will lead to the production of other evidence which will have that consequence: Cain v Glass (No. 2) at 250-251; R v Mason at [38]-[44]. 29Another factor to be taken into account, when addressing the exception to the rule and balancing the competing public interests, is the stage which the criminal proceedings have reached. In Cain v Glass (No. 2) the question was whether the exception applied to committal proceedings. McHugh JA (with whom Kirby P agreed) concluded (at 251) that the rule applied "at all stages of criminal proceedings" including the committal stage and that "(r)ejection of the claim at one stage will not preclude an application at a subsequent stage". At each stage it was necessary to consider the question being addressed and whether, in that context, disclosure of an informant's identity would assist the defendant. At the trial stage it is sufficient to require disclosure "that the jury might reasonably think that the evidence which is likely to result from the disclosure, will lead to an acquittal" (at 251). 30The authorities also make clear that for the non-disclosure rule to apply or the public interest against disclosure to prevail, it is not necessary to show the existence of any real or imminent threat or danger to the particular informer in the event of disclosure. That is because the public interest and rationale for the rule is to ensure that sources of information which assist police in discharging their duty of preventing and detecting crime do not dry up: D v National Society for the Prevention of Cruelty to Children at 218, 232; Cain v Glass (No. 2) at 233-234, 247; DPP v Smith at 311. That interest is put at risk if the anonymity of those sources is not respected and protected. In R v Mason Bleby J noted (at [29]-[31]) that the existence of a threat to the informer is not a condition precedent to the operation of the informer rule. The same point was emphasised by McHugh JA in Cain v Glass (No. 2) (at 253-254) when addressing whether it was relevant to consider the safety of police informers who were witnesses: "... the anonymity of the informants is entitled to be protected whether or not they are likely to be in danger. It is precisely because informants may often be in danger that the public interest requires that their anonymity should be protected. It is not for individual judges or magistrates to weigh up the competing public interest. The law has already done so. The public interest always requires the protection of the informant unless disclosure will assist in the protection of the liberty of the subject in criminal proceedings."

There was error on the part of the primary judge 31The primary judge approached the claim to public interest immunity by addressing first whether the Accused had a legitimate forensic purpose in having access to the Application or at least parts of it. He concluded that the Accused had demonstrated such a purpose for obtaining production of the Application because it was "on the cards" that it would materially assist his case that he only recently had come into possession of the cocaine and firearms and did so because he was forced to store them by his cousin, Shadi Derbas: [21], [22]. 32The primary judge did not err in so concluding. The subpoena was issued in August 2010 and sought the production of documents including the Application. By that time those acting for the Accused had been informed by the police of the matters set out in [14] above. The accused was aware that the police had received information from a confidential source which was relied upon to obtain the issue of a search warrant in relation to prohibited drugs and firearms offences. It was also known that any application for the issue of a search warrant would have had to set out the grounds relied upon to support its issue. On the Accused's case, there were issues as to when and in what circumstances he had come to be in possession of the cocaine and firearms and as to the basis upon which he held them. Where it was known that the police had received information that he held those items, it was "on the cards" that the Application would set out the basis upon which the police believed that he had possession of the cocaine and firearms and their understanding of the circumstances in which he had come to do so: see Carroll v Attorney General for New South Wales (1993) 70 A Crim R 162 at 181-182; Attorney General for New South Wales v Chidgey [2008] NSWCCA 65; (2008) 182 A Crim R 536 at [64]-[68]. 33The primary judge then undertook the process of balancing "the competing interests" in deciding whether to require production of the Application or any part of it to the court: [23]. With respect to the material extracted in confidential [32], he addressed whether the information contained in that part, which included the identity of a police informer, was "relevant" to any of the matters raised or proposed to be raised by the Accused by way of defence. He concluded (at [46]): "[T]he interest of the accused in being provided with information clearly relevant to the expressed defence substantially outweighs any public interest in the information not being disclosed. That is, that ... access to ... that portion ... of the Application as set out at paragraph 32 above, is in the interests of justice and relevant to establishing the innocence of the accused." The primary judge then considered the public interest in the information not being disclosed. When doing so he took into account as relevant his views about the possible consequences for the informer of the disclosure of his or her identity: confidential [43], [44] and [45]. 34The primary judge did not address the significance of the identity of the police informer to the conduct of the Accused's defence and the need to know that identity at this stage of the proceedings. Specifically, he did not consider whether, apart from the identity of the informer, there was other information contained in confidential [32] which was not already available to the Accused or why it would be of substantial assistance to the Accused to know the identity of the informer at this stage of the proceedings. Nor did the primary judge consider whether there was some other reason why the Accused should have access to part of the Application at this time. 35It was not sufficient for the primary judge to consider, as he did, whether the information contained in confidential [32] was relevant in the sense that it supported the defences outlined on behalf of the Accused. Ultimately it was necessary to assess the significance of the identity of the informer and the other information in confidential [32] to the Accused's ability to pursue those defences in the proceedings. The primary judge erred in not doing so. 36The primary judge also erred in taking into account his assessment of the likely consequences of disclosure of the informer's identity: see confidential [43], [44] and [45]. For the reasons given above, that matter was not relevant to whether the exception applied or to any balancing exercise.

The claim to immunity from production should be upheld 37Accordingly, this Court is required to address the claim for public interest immunity in accordance with the principles stated above. In doing so it has the benefit of the evidence which was adduced by leave under s 5F(4). 38The following matters are relevant to that consideration. First, except for the identity of the police informer, at the time the subpoena was issued the Accused and his lawyers were aware of the information provided to the police by that informer concerning the cocaine and firearms held by the Accused which is recorded in confidential [32]. That information was provided in the course of communications between the Accused and his solicitor and the police, following the execution of the search warrant. 39Secondly, the claim to immunity is made after the completion of the committal proceedings and before the commencement of the trial. A significant purpose identified by counsel for the Accused for seeking access to the Application at this time is that it might form part of representations to be made on behalf of the Accused to the Director of Public Prosecutions in support of a no bill finding in respect of all or some of the charges against him. In my view that purpose is not one to which the exception to the rule applies because it is not directed to assisting the Accused in relation to any issue arising in the prosecution or defence of the criminal proceedings at any of the stages of those proceedings. Nor, in undertaking any balancing exercise, is there good reason to think that knowledge of the identity of the informer would be of "substantial assistance" to the Accused in persuading the Director to make a no bill finding in respect of any charge, and specifically the charge of possession for supply. 40Thirdly, the specific issues to which the identity of the informer is said to be relevant are whether the Accused's possession of the firearms was as a result of duress and whether the Accused possessed the cocaine "otherwise than for supply". The Accused's case is that he was forced to hold the items by his cousin, Shadi Derbas, and that he did so because of his fear of his cousin. That case is supported by forensic evidence which is said to link the items found at the Accused's home with Shadi Derbas. It is also consistent with the information provided to the police by the informer and communicated by the police to the Accused or his solicitor. The Accused argues that knowledge of the identity of the informer may increase the perceived likelihood that the information provided to the police was correct and that this is something which a jury might take into account when assessing whether to accept that hearsay evidence as correct. 41This argument assumes that hearsay evidence of statements made by the informer may be led before the jury and that there is a risk that a jury might not accept that evidence, or give it sufficient weight, in the absence of knowledge of the informer's identity. It is conceded by the Accused that the police officer who applied for the issue of, and executed, the search warrant will have to be called at the trial to establish possession of the charged items. At present that officer does not dispute that he was given the information referred to and does not suggest that he does not believe that information to be true. If he is cross-examined on behalf of the Accused and permitted without objection to give that evidence, his evidence and the forensic evidence would confirm the Accused's case that he held the items for Shadi Derbas. In those circumstances it is difficult to see why there is a risk that a jury would not treat that evidence as correct. If he gives different evidence as to what he was told or as to his belief in the accuracy of that information, he could be further cross-examined by reference to his two signed statements admitted in evidence before this Court. If necessary at that stage a further application could be made for access to the Application so that he could also be cross-examined by reference to that document. At that time it would be necessary to address in that context whether the document should be produced and the identity of the informer disclosed. 42If the giving by the officer of hearsay evidence is objected to at the trial, the Accused's position would not be advanced by having the Application or a part of the Application because the hearsay rule would also apply to its admission in evidence. Any statements made by the informer to Detective O'Neill would be first-hand hearsay if given in evidence by him and second-hand hearsay in the Application. The only circumstance in which hearsay evidence of the information provided to the officer might be given is if one of the exceptions in ss 65 or 66 of the Evidence Act was shown to apply. Should the Crown object to the hearsay evidence, and it become necessary to consider the application of those exceptions, it would also be necessary to address whether the informer's identity should be disclosed to enable one of those exceptions to be established, or for some other good reason. 43Fourthly, as is assumed above, rejection of the claim to allow access to any part of the Application so as to disclose the informant's identity at this time does not preclude a further application being made during the course of the trial in the circumstances which then obtain: Cain v Glass (No. 2) at 251. 44The foregoing analysis shows that depending upon what happens at the trial, disclosure of the informer's identity may assist the Accused in prosecuting his defence to some of the charges against him. As the matter presently stands, however, the Accused has not established any more than that it "might" be of some assistance to him to have disclosure of the informer's identity, depending upon what happens at the trial. That is not sufficient either to establish the exception to the rule or to justify disclosure at this time in a balancing of the relevant interests. As Doyle CJ said in Haydon v Magistrates Court of South Australia (at [30]): "... the fact [that] disclosure of an informer's identity, or of information provided, might be of some assistance will not be sufficient. To require disclosure on this basis would be to undervalue the importance of public interest in non-disclosure." 45For these reasons the appeal should be allowed for the first of the grounds of appeal. That makes it unnecessary to consider the second of the grounds relied upon by the Attorney. 46Finally, reference was made in the written submissions of the Accused to an appeal by the Accused from that part of the primary judge's order refusing access to the balance of the Application. That matter was not addressed in oral argument and there was no leave sought to file a cross-appeal. Accordingly, it does not arise for consideration. I should add that by mentioning this matter I am not to be taken to suggest that any such argument would have had any real prospects of success.

Proposed orders 47The following orders should be made: (1)The appeal be allowed. (2)Orders 1, 2, 3 and 4 made on 24 February 2011 be set aside. (3)There be no access to the document headed "Application for Part 5 Search Warrant/Record of Application" dated 23 November 2008 and signed by Detective Paul O'Neill as applicant which was produced in answer to a subpoena to produce documents addressed to the Registrar of the Local Court, Mt Druitt. 48Hoeben J : I agree with Meagher JA and the orders which he proposes. 49Rothman J : I agree with Meagher JA.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 February 2012