APPEAL - Appeal from judicial registrar's order that confidential affidavit and submissions be provided, on appropriate undertakings, to applicant's lawyers - Appeal by way of hearing de novo - Appeal dismissed.

Commonwealth v Northern Land Council [1993] HCA 24; (1993) 176 CLR 604; Jackson v Wells [1985] FCA 100; (1985) 5 FCR 296, referred to.

1. On 29 May 2008, following an eight-week trial, the applicant was convicted in the Supreme Court of one charge of murder and one charge of intentionally causing serious injury. The victims of these offences were, respectively, Lewis Moran and Herbert Wrout. The principal Crown witness at trial was Jack Price.[1] On 9 February 2009, the applicant was sentenced to life imprisonment, with a non-parole period of 30 years.[2]
2. On 20 April 2011, this Court refused the applicant leave to appeal against conviction and leave to appeal against sentence.[3] On 28 October 2011, the High Court refused the applicant's applications for special leave to appeal against conviction and sentence.[4]
3. On 20 April 2021, pursuant to s 326A of the Criminal Procedure Act 2009, the applicant filed a second application for leave to appeal against conviction. His application contains one proposed ground of appeal as follows:
   1. There is fresh and compelling evidence that should, in the interests of justice, be considered on an appeal and that establishes that there has been a substantial miscarriage of justice.

Particulars

The fresh and compelling evidence includes:

1.1 Seven covert recording transcripts relating to conversations between Jack Price and investigators in relation to the Shane Chartres-Abbott murder.

1.2 Five unredacted statements made by Jack Price revealing that he had confessed to murdering Shane Chartres-Abbott with a .357 Magnum revolver that he disposed of at Eastern Beach, Geelong, which was the same type of weapon used to murder Lewis Moran.

1.3 A sixth statement made by Jack Price alleging that he had provided the Shane Chartres-Abbott murder weapon to David Waters, rather than the applicant as he stated in his first statement, and the perjury committed by Price in 2007 that was illuminated by that disclosure.

1.4 The evidence that Jack Price gave at the Shane Chartres-Abbott murder trial that he was not precluded by reason of his physical health, in particular his abnormal heart rhythm, breathing problems and injury to his right hand, from chasing Lewis Moran, discharging a revolver and running from the scene.

The substantial miscarriage of justice relates to the guilty verdicts returned on 29 May 2008 to murder and causing serious injury intentionally.

1. On 29 September 2021, pursuant to s 317 of the Criminal Procedure Act 2009, Pedley JR made an order that the Chief Commissioner of Victoria Police produce:

(a) all transcripts of conversations involving Victoria Police officers and Jack Price in 2004;

(b) all transcripts of conversations involving Victoria Police officers and Jack Price in 2006 and 2007;

(c) all transcripts of conversations involving Victoria Police officers and Jack Price between 19 May 2004 and 8 July 2014 relating to the applicant and/or the murders of Shane Chartres-Abbott, Lewis Moran or Lewis Caine, that do not fall within paragraphs (a) and (b);

(d) all documents, including notes (whether handwritten or electronic), concerning conversations involving Victoria Police officers and Jack Price between 19 May 2004 to 8 July 2014 relating to the applicant and/or the murders of Shane Chartres-Abbott, Lewis Moran or Lewis Caine;

(e) all statements, including draft statements, made by Jack Price between 19 May 2004 and 8 July 2014 that relate to the murders of Shane Chartres-Abbott, Lewis Moran or Lewis Caine, and that have not been previously disclosed to the applicant;

(f) all documents referring or relating to benefits or inducements made to or in favour of Jack Price, Julie Hayes, Michael Hayes or Noel Faure by State or Federal bodies, including Victoria Police, the Office of Public Prosecutions, the Australian Criminal Intelligence Commission, and/or the Australian Taxation Office;

(g) all documents, including notes (whether handwritten or electronic), concerning conversations involving Victoria Police officers and Herbert Wrout relating to the applicant and/or the murders of Shane Chartres-Abbott, Lewis Moran or Lewis Caine.

1. On 23 November 2021, Pedley JR made a further order pursuant to s 317 that the Chief Commissioner produce:

(a) all documents, including notes (whether handwritten or electronic), concerning contact involving registered police informer, Nicola Gobbo (Human Source 3838) and Jack Price between 19 May 2004 and 31 December 2006, relating to the applicant and/or the murders of Shane Chartres-Abbott, Lewis Moran, or Lewis Caine.

1. Pursuant to the orders made by Pedley JR, the Chief Commissioner has produced documents to the Court which have been redacted using colours to identify the category of redaction and the basis upon which the redaction was made as follows:
   • the black redactions are redactions 'made on the basis of relevance; that is, information falling outside the scope of the orders';
   • the pink redactions are redactions 'made to irrelevant material which contains personal or sensitive information';
   • the red redactions are redactions 'made to maintain the anonymity of police informers, witnesses and others who may be placed at risk';
   • the green redactions are redactions 'made to maintain the anonymity of human source handlers, controllers, undercover controllers or other covert operatives';
   • the yellow redactions are redactions 'made to protect information from being divulged relating to police training, tactics, methods and equipment'; and
   • the blue redactions are redactions of 'confidential information relating to other law enforcement agencies'.
2. The applicant objects to the redactions made by the Chief Commissioner in respect of 43 of the documents produced. His principal submission is that the material in these documents 'should properly be disclosed to [him] given their relevance to the assessment of the (credibility and reliability of the) evidence of Jack Price as well as ... other witnesses'.
3. In response, the Chief Commissioner has filed an open affidavit and a confidential affidavit, both sworn by Superintendent Timothy McKinney, together with open and confidential submissions. In his open submissions, the Chief Commissioner said that, following a further review of the documents, redactions in respect of three, and some of the redactions in four, of the 43 documents, would not be pressed; otherwise, the Chief Commissioner maintained the claims previously made by him.
4. On 18 July 2022, the applicant filed submissions in which he contended that, in order to consider and determine the disputed redactions, the Court 'would be assisted by submissions made by a properly informed contradictor to the Chief Commissioner'. The applicant's principal submission was that, subject to the signing of appropriate confidentiality undertakings, his legal representatives should be provided with the confidential material and submissions in order to be that contradictor. In the alternative, he submitted that amicus curiae should be appointed as the contradictor.
5. On 27 July 2022, the Chief Commissioner filed submissions objecting to the appointment of a contradictor. The Chief Commissioner submitted:

There is no need for either course proposed by the Applicant. In view of the limited materials and confined issues raised in this matter, there is no reason to depart from the usual, and orthodox, approach in relation to public interest immunity claims, namely that the Court read the confidential material and consider the documents for itself, seeking assistance from counsel for the Chief Commissioner as required. Should the Court decide after reviewing the documents and confidential materials that it may require further assistance beyond that which can be provided by counsel for the Chief Commissioner, the Court can, at that stage, consider the appointment of amici curiae.

1. On 9 September 2022, the dispute between the applicant and the Chief Commissioner, as to whether there should be a contradictor and (if so) whether that contradictor should be the applicant's legal representatives, was heard by McCann JR. On 15 September 2022, McCann JR delivered reasons for judgment in which she concluded that the confidential documents filed by the Chief Commissioner should be provided to the applicant's legal representatives, subject to appropriate confidentiality undertakings.[5] On 19 September 2022, pursuant to her reasons delivered on 15 September, the judicial registrar made the following orders:
   1. Subject to the Applicant's counsel providing an undertaking to the Court in the form at Annexure A, by 4 pm on 4 October 2022 the Chief Commissioner of Police is to provide a physical copy of the following documents to the Applicant's legal representatives, namely Messrs Paul Smallwood and Tass Antos, both of counsel, and Mr John Yianoulatos, solicitor:

1.1 the confidential submissions of the Chief Commissioner dated 17 June 2022;

and

1.2 the confidential affidavit of Superintendent Timothy James McKinney sworn 17 June 2022, but not the exhibit marked Confidential TJM-2.

1. By 4 pm on 18 October 2022, the Applicant is to file and serve on the Chief Commissioner submissions in response to the confidential submissions.[6]

1. The judicial registrar excluded from production to the applicant's legal advisers the exhibit marked 'Confidential' TJM-2 because she concluded that the confidential submissions and affidavit filed by the Chief Commissioner described the subject documents and the privilege or prohibition which attaches to them in some detail; and that the provision of those materials alone to the applicant's legal representatives would be sufficient for them to consider and make submissions about the relevance and the Chief Commissioner's objections to production.[7]

1. On 29 September 2022, the Chief Commissioner filed a notice of appeal pursuant to r 84.05 of the Supreme Court (General Civil Procedure) Rules 2015.[8] The appeal is an appeal by way of hearing de novo.[9] In his notice of appeal, the Chief Commissioner seeks to have paragraphs 1 and 2 of the orders made on 19 September 2022 set aside and, in their place an order that:

The applicant's application for a contradictor be dismissed and that the hearing and determination of the public interest immunity and statutory prohibition claims made by the Chief Commissioner proceed without the appointment of a contradictor.

1. No notice of appeal was filed by the applicant in relation to that part of the judicial registrar's orders excluding production of confidential exhibit TJM-2. The applicant appears to accept the finding at Reasons [33] that, if his legal representatives are provided with the material ordered by the judicial registrar, it would not be necessary for them to see the actual documents the subject of the disputed redactions.

1. The Chief Commissioner's primary position was that the hearing and determination of his public interest immunity and statutory prohibition claims should proceed without a contradictor. That is, the Court should hear the Chief Commissioner's claims in the absence of any other party, with the Chief Commissioner's counsel providing the Court with any necessary assistance. The Chief Commissioner's secondary position was that, if the Court required assistance over and above that which could be provided by the Chief Commissioner's counsel, amicus curiae could be appointed.
2. The Chief Commissioner submitted that the starting point at common law:

is a rule that where, a claim for public interest immunity has been made over documents, ordinarily, a court should not order that confidential documents be inspected by a non-objecting party's legal representatives before determining the claim.

The Chief Commissioner said that this was explained by the plurality of the High Court in Commonwealth v Northern Land Council,[10] when they said:

Whatever the safeguards, [to proceed otherwise] represents an encroachment upon the confidentiality claimed for the documents. And in this case, public interest in their immunity from disclosure was of the highest order. If inspection of documents is necessary to determine the question of immunity (and in this case it was not) then it ought to be carried out by the Court before ordering production for inspection by a party. No doubt this may in some cases cast a heavy burden on the Court, but it is unavoidable if confidentiality is to be maintained until a claim for immunity is determined.[11]

1. The Chief Commissioner then observed that the Full Court of the Federal Court subsequently held in Seymour v Price[12] that the observations of the High Court in Northern Land Council had 'set a very high barrier indeed' to the inspection of documents by the legal representatives of a party before determining the claims.[13]
2. Next, the Chief Commissioner submitted that it had long been recognised that permitting a party's legal representatives to inspect, upon appropriate undertakings, the documents over which confidentiality is claimed has at least two problems. The first problem was identified by Toohey J in Northern Land Council as follows:

Inspection by an applicant's legal representatives, subject to an undertaking of non-disclosure, will often place them in a position of difficulty vis-à-vis their client. It may even tie their hands in the further conduct of the litigation. Although this is largely a matter between them and their client, the judge may take this aspect into account when deciding the appropriate course to be followed in the determination of a claim for public interest immunity.[14]

The second problem was identified by Wilcox J in Jackson v Wells,[15] as follows:

[The proposal] involves a number of problems. Without reflecting in any way upon the integrity of any counsel or solicitor, difficulties are likely to arise where counsel appearing in, and advising their clients in respect of, protracted and complex proceedings acquire information which they are not free to use or to pass on to their clients. During the heat of battle an unwitting disclosure may occur. Frank and full advice becomes impossible. I am aware of cases in which, for reasons such as these, experienced counsel have declined to receive information which they are not free to share with their clients. It seems to me merely common sense to conclude that the fewer people who have access to confidential information the less is the risk of unauthorised disclosure. Weighing the assistance likely to be obtained from counsels [sic] submissions against the sensitivity of the material, it seemed better not to accede to Mr Robert's suggestion.[16]

1. The Chief Commissioner submitted that 'departure from the usual rule that the Court examine the materials ex parte in favour either of providing the material to the applicant's legal representatives or appointing amici curiae' was not warranted (or at least, at this stage, premature). He submitted that 'external assistance' was not required, the material in dispute being relatively small in volume, confined and of limited complexity. He also submitted that no order of the kind sought by the applicant should be made until inspection has begun and concrete difficulties identified.
2. In advancing his alternative position that, if assistance is required it should come from lawyers other than the applicant's legal representatives, the Chief Commissioner submitted that the authorities 'indicate that the risk of advertent disclosure is heightened where disclosure is made to a representative who will continue acting for a party'. The Chief Commissioner then referred to Whealey J's endorsement in R v Khazaal,[17] of a passage in Campbell J's judgment in Carbotech-Australia v Yates,[18] namely:

Even if documents are only shown to nominated officers of the litigant, and even if those officers are informed of the restrictions on use of the information ... those officers are subject to the same risk of inadvertent disclosure as a solicitor to whom access is restricted is subject. As well, even if the officers are being punctiliously careful, the workings of the human mind are such that, once something is known, sometimes it cannot be completely obliterated. Use can sometimes be made unconsciously of information one has learned. Those considerations need to be balanced against the importance of the issues in the proceedings.

1. As deceptively seductive as the applicant's submission that the court does not require external assistance, having reviewed the material, I am firmly of the view that a contradictor is necessary for the purposes of determining the Chief Commissioner's objections to providing the redacted material, and that it is not premature to order that there be a contradictor. There are in excess of 300 pages of material containing disputed redactions. It is not plain to me that a court, hearing the matter without the benefit of a contradictor, would not have real difficulty in determining the matter. To the contrary, in my view there would be an unsatisfactory risk that the Court's analysis (unassisted by a contradictor) would be superficial and that the applicant might be deprived of material (the real significance of which, may not be apparent to the Court). Such an outcome would be entirely unacceptable. As was said in Roberts v The Queen:[19]

It is now accepted that it is fundamental that there must be full disclosure in criminal trials. It is a 'golden rule'. The duty is to disclose all relevant material of help to an accused. It is owed to the Court, not the accused. It is ongoing. It includes, where appropriate, an obligation to make enquiries. It is imposed upon the Crown in its broadest sense. And a failure in its discharge can result in a miscarriage of justice.[20]

1. As serious as the issues might be in other cases concerning confidential information, public interest immunity and statutory prohibitions, the ultimate issue in the present case is as serious as an issue can be - involving, as it does, the question of whether a person currently sentenced to life imprisonment was wrongly convicted as a result of a failure of the Crown's duty of disclosure. Acceding to the Chief Commissioner's submission, that there is no need for the Court to have a contradictor in respect of his claims, would carry with it not only the absence of argument about the contents of the disputed redactions, but also about the contents of the confidential affidavit relied upon by the Chief Commissioner. In such circumstances, it might be expected that the contents of that affidavit would be taken as true at face value. An example of the danger of such an approach, in a case like the present, can be found in this Court's decision of Arico v The Queen[21] in relation to the affidavits sworn by Superintendent McKinney in that case. It may very well be that seemingly reasonable (or uncontroversial) statements in the confidential affidavit could be shown by a contradictor to be false on a basis presently unknown to the Court.[22]
2. The authorities dealing with the question of how claims of confidence, public interest immunity and the like are to be dealt with in the course of a proceeding show that sometimes it is appropriate for the Court to resolve the issues without a contradictor; sometimes amicus curiae are appointed; and sometimes the other party's legal representatives, on appropriate undertaking as to confidentiality, are permitted to see the material. The appropriate course to be taken requires a proper examination of the specific facts of the case, all of its circumstances, the importance of the issue, the likelihood of any claimed risk eventuating if information is provided to a third party and the seriousness of the consequences should any such risk eventuate.
3. As I have already said, a contradictor is necessary to resolve the present dispute between the applicant and the Chief Commissioner. The question then becomes whether the contradictor should be amici curiae (as contended for by the Chief Commissioner) or the applicant's legal representatives (as contended for by the applicant). That question falls to be resolved by reference to the matters referred to in the previous paragraph.
4. While the problems identified by Toohey J in Northern Land Council and Wilcox J in Jackson are relevant matters to consider, they are more relevant in a trial setting than they are in relation to an application for leave to appeal (and appeal, if leave is granted) of the present kind. Realistically, it is difficult to see how inspection by the applicant's legal representatives, subject to an undertaking of non-disclosure, will in this case place them in a position of difficulty vis-à-vis the applicant. It is even more difficult to see how such inspection may 'tie their hands in the further conduct of the litigation'. Similarly, the present proceeding being an appeal rather than a fully-blown trial leaves little scope for some 'unwitting disclosure' occurring during 'the heat of battle'. The same may be said of the possibility of the 'unconscious' use of the confidential information contemplated by Campbell J in Carbotech-Australia (either in the course of a hearing, or in some other context).
5. In my view, the risks that the Chief Commissioner is concerned about, in relation to the provision of the confidential material the subject of this appeal to barristers and solicitors who are officers of the Court is realistically the same, whether the documents are provided on appropriate confidentiality undertakings to the applicant's legal representatives, or to lawyers who are appointed as amici curiae. Moreover, the Court will derive greater assistance from lawyers who have a deep understanding of all the facts and circumstances of the applicant's case, rather than lawyers appointed by the Court, whose understanding of the detail and the true significance of particular matters would necessarily be more limited. If the applicant's legal representatives are the contradictor, they will also have the capacity to make submissions that certain redactions might be handled differently, or edited in a way that would allow them access to such material as being sufficient for the purpose of the application for leave to appeal, while preserving the confidentiality of a matter that they do not otherwise need.
6. For the above reasons, there should be a contradictor in relation to the dispute between the parties concerning the Chief Commissioner's redactions, and that contradictor should (on the giving of appropriate undertakings) be the applicant's legal representatives. That said, there are two additional matters (while not capable of being decisive of themselves) telling in favour of the making of such an order.
7. First, in Mokbel v The Queen,[23] upon the provision of the confidential material to the legal representatives of Mr Mokbel, the claim for the production of the disputed documents in that case was abandoned and the Court was not required to hear the Chief Commissioner's claim for public interest immunity. Such a course is only possible if the contradictor acts for the applicant. The saving of court time and scarce judicial resources, while not being permitted to drive the result of the present application, is obviously in the interests of justice generally.
8. Secondly, all other things being equal, in circumstances where there have been issues about material not being disclosed by Victoria Police to accused who have been convicted of serious offending and sentenced to substantial terms of imprisonment, it is important for the applicant in the present case to believe that the processes used to determine his application for leave to appeal are as fair as circumstances permit. While the applicant will not be permitted to know any of the confidential information in this case, he is more likely to be accepting of a result if his lawyers are involved in the process than if he is simply told that there was a hearing at which his lawyers were not present and matters were determined against him. Again, this consideration cannot be permitted to drive the result of this application, but it is in the interests of justice that those caught up in the criminal justice system like the applicant believe that its processes are fair.

1. The Chief Commissioner's appeal from the orders of McCann JR made on 19 September 2022 will be dismissed.

[2] R v Goussis [2009] VSC 16. The applicant had earlier received a sentence of 20 years, with a non-parole period of 15 years in respect of the murder of Lewis Caine (see R v Goussis [2006] VSC 168). At the time he was sentenced for the present offending, the applicant had been in prison for 4 years and 9 months. The 30-year non-parole period imposed by the judge was ordered to commence from the day of sentencing on 9 February 2009, making an effective non-parole period from that day of 34 years and 9 months.

[3] Goussis v The Queen [2011] VSCA 117.

[4] Goussis v The Queen [2011] HCATrans 306.

[5] Goussis v The King [2022] VSCA 197 ('Reasons').

[6] It is not necessary for the purposes of these reasons to set out the terms of the confidentiality undertaking in Annexure A.

[8] As to which, see Polimeni v The Queen [2022] VSCA 20, [7]-[12].

[10] [1993] HCA 24; (1993) 176 CLR 604 ('Northern Land Council').

[12] [1998] FCA 1224.

[14] Northern Land Council [1993] HCA 24; (1993) 176 CLR 604, 638 (citations omitted).

[15] [1985] FCA 100; (1985) 5 FCR 296 ('Jackson').

[17] [2006] NSWSC 1061, [34].

[18] [2006] NSWSC 269, [13] ('Carbotech-Australia').

[19] [2020] VSCA 58; (2020) 60 VR 431.

[20] Ibid, 444 [56] (citations omitted).

[21] [2022] VSCA 35 ('Arico').

[23] [2021] VSCA 366.