H v M.C. AND ANOR No. SCCIV-00-1200 [2001] SASC 65 (30 June 2001)

EVIDENCE - PUBLIC INTEREST IMMUNITY - POLICE INFORMER During the course of a preliminary examination on charges of murder, the presiding magistrate held that a claim for public interest immunity advanced by the prosecution with respect to the record of a statement given by one of the co-accused to the investigating police officers at an early stage of the investigation, should be left to be determined by the trial judge - in the meantime, he declined access to it by the three co-accused - the statement was given in confidence, with an assurance that it would not be used in evidence unless by order of the court - on an application for judicial review, referred to the Full Court, held that the magistrate had failed to exercise his jurisdiction by failing to rule on the merits of the claim for public interest immunity - discussion of relevant tests to be applied in cases where informer immunity claimed - discussion of significance of material to the defence case - desirability of affidavit to support claim for immunity - on a reconsideration of the matter, held that the claim for immunity should be upheld.

• Magistrates Court Act 1991 s 20, referred to.
• Jarvie v Magistrates Court of Victoria [1995] VicRp 5; [1995] 1 VR 84, applied.
• Smith (1996) 86 A Crim R 308, discussed.
• R v Mason (200) [2000] SASC 161; 77 SASR 105;
• Meissner (1994) 76 A Crim R 81;
• R v Hardy (1794) 24 State Tr 199;
• Conway v Rimmer [1968] UKHL 2; [1968] AC 910;
• Alfred Crompton Amusement Machines v Customs and Excise Commissioners [1974] AC 405;
• D v National Society for the Prevention of Cruelty to Children [1977] UKHL 1; [1978] AC 171;
• Burmah Oil Co Ltd v Bank of England [1979] UKHL 4; [1980] AC 1090;
• R v Keane [1994] 1 WLR 746;
• Marks v Beyfus [1890] 25 QBD 494;
• Australian National Airlines Commission v Commonwealth ; ;

CRIMINAL LAW - PRELIMINARY EXAMINATION Discussion of the scope of disclosure to be made by the prosecution under s 104 of the Summary Procedure Act 1921.

• Summary Procedure Act 1921 (SA) s 104, referred to.
• Public Service Association (SA) v Federated Clerks' Union and Anor [1991] HCA 33; (1991) 173 CLR 132;
• The Queen v Harry: ex parte Eastway (1985) 39 SASR 203;
• Goldsmith v Newman and Anor (1992) 59 SASR 404;
• Carter v Hayes (1994) 61 SASR 451;
• Hunt and Anor v Russell and Anor (1995) 63 SASR 402;
• Carter and Ors v Drake (1992) 9 WAR 82;
• Ex parte Minister for Corrective Services (1993) 9 WAR 534, considered.

JUDICIAL REVIEW - CRIMINAL PROCEEDINGS Discussion emphasising the limited circumstances in which a claim for judicial review of criminal proceedings in train will be entertained.

• Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163;
• The King v War Pensions Entitlement Tribunal; ex parte Bott [1933] HCA 30; (1933) 50 CLR 228;
• R v Nicholson (1899) 2 QB 455;
• Ex parte Hebburn Ltd [1947] NSWStRp 24; (1947) 47 SR (NSW) 416;
• R v Minister of Health [1939] 1 KB 232;
• Estate and Trust Agencies (1927) Ltd v Singapore Improvement Trust [1937] AC 898;
• The King v Connell [1944] HCA 42; (1944) 69 CLR 407;
• R v Board of Education [1910] 2 KB 165;
• Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1;

Counsel: MR J LYONS WITH HIM MR C S L ABBOTT - Solicitors: LEMPRIERE ABBOTT MCLEOD

Counsel: MR C BLEBY - Solicitors: DIRECTOR OF PUBLIC PROSECUTIONS (SA)

Counsel: MS W ABRAHAM QC - Solicitors: DIRECTOR OF PUBLIC PROSECUTIONS (SA)

Counsel: MR S TILMOUTH QC WITH HIM MR E MCGEE - Solicitors: MCGEE & ASSOCIATES

Counsel: MR M GRIFFIN - Solicitors: PAT MCCROHAN LAWYERS

Counsel: MR P M TWIGGS - Solicitors: NORTH EAST LAWYERS

Judgment No. [2001] SASC 65

[2001] SASC 65

DOYLE CJ I have read the reasons prepared by Perry J. There is no need for me to repeat the relevant facts, or the circumstances under which these proceedings have come before the Court. I adopt what Perry J has said. I accept the accuracy of the statement of principles found in the reasons of Perry J.

I also agree, for the reasons given by Perry J, that the Magistrate erred in dealing with the claim by the Director of Public Prosecutions that Mr Haydon and the other accused should not be permitted to inspect the material produced by the Director in response to the subpoena issued under s 20 of the Magistrates Court Act. I agree with Perry J that the Magistrate erred in failing to decide the claim that the material was the subject of public interest immunity, and immune from inspection by the persons charged. Instead of considering and deciding the claim by reference to the principles referred to by the Magistrate, and set out in the reasons of Perry J, the Magistrate has simply left the decision to be made by the trial Court. This the Magistrate was not permitted to do.

This Court can interfere if the Magistrate has wrongly failed to exercise the jurisdiction that he was called upon to exercise when the claim of immunity was made. The plaintiff submits that there has been a wrongful failure by the Magistrate to exercise his jurisdiction. That being the submission advanced, it is not necessary to consider whether or not there has been an error of law on the face of the record: cf Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163.

This Court does not sit on appeal from a Magistrate conducting a preliminary examination. The Court's ability to interfere in the conduct of a preliminary examination is limited, and there are powerful reasons for the Court exercising those limited powers with restraint. But authority establishes that sometimes an error of law made by a Magistrate in the course of a preliminary examination will amount to a failure to exercise the jurisdiction conferred on the Magistrate. Such a failure may be remedied by an order by this Court requiring the Magistrate to exercise the jurisdiction. The relevant principle was stated as follows by Rich, Dixon and McTiernan JJ in The King v War Pensions Entitlement Appeal Tribunal; ex parte Bott [1933] HCA 30; (1933) 50 CLR 228 at 242-243:

"A writ of mandamus does not issue except to command the fulfilment of some duty of a public nature which remains unperformed. If the person under the duty professes to perform it, but what he actually does amounts in law to no performance because he has misconceived his duty or, in the course of attempting to discharge it, has failed to comply with some requirement essential to its valid or effectual performance, he may be commanded by the writ to execute his function according to law de novo, at any rate if a sufficient demand or request to do so has been made upon him. In the case of a tribunal, whether of a judicial or an administrative nature, charged by law with the duty of ascertaining or determining facts upon which rights depend, if it has undertaken the inquiry and announced a conclusion, the prosecutor who seeks a writ of mandamus must show that the ostensible determination is not a real performance of the duty imposed by law upon the tribunal. It may be shown that the members of the tribunal have not applied themselves to the question which the law prescribes, or that in purporting to decide it they have in truth been actuated by extraneous considerations, or that in some other respect they have so proceeded that the determination is nugatory and void. But the prosecutor who undertakes to establish that a tribunal has so acted ought not to be permitted under colour of doing so to enter upon an examination of the correctness of the tribunal's decision, or of the sufficiency of the evidence supporting it, or of the weight of the evidence against it, or of the regularity or irregularity of the manner in which the tribunal has proceeded. The correctness or incorrectness of the conclusion reached by the tribunal is entirely beside the question whether a writ of mandamus lies. It is also beside the question that the determination, although not void, is yet one which, because of some failure to proceed in the manner directed by law, or of some collateral defect or impropriety, is liable to be quashed by a Court which on appeal, certiorari, or other process is competent to examine it (see per Channell J, R v Nicholson (1899) 2 QB 455 at 465)."

This statement of principle has often been referred to with approval, and I am bound by it. But the principle is one to be applied with some care. The principle is stated by reference to a distinction that can be elusive. In Ex parte Hebburn Ltd [1947] NSWStRp 24; (1947) 47 SR (NSW) 416 at 420, Jordan CJ said:

"... I quite agree that the mere fact that a tribunal has made a mistake of law, even as to the proper construction of a statute, does not necessarily constitute a constructive failure to exercise jurisdiction: R v Minister of Health [1939] 1 KB 232 at 245-6. But there are mistakes and mistakes; and if a mistake of law as to the proper construction of a statute investing a tribunal with jurisdiction leads it to misunderstand the nature of the jurisdiction which it is to exercise, and to apply 'a wrong and inadmissible test': Estate and Trust Agencies (1927) Ltd v Singapore Improvement Trust [1937] AC 898 at 917; or to 'misconceive its duty', or 'not to apply itself to the question which the law prescribes': The King v War Pensions Entitlement Appeal Tribunal [1933] HCA 30; (1933) 50 CLR 228 at 242-3; or 'to misunderstand the nature of the opinion which it is to form': The King v Connell [1944] HCA 42; (1944) 69 CLR 407 at 432, in giving a decision in exercise of its jurisdiction or authority, a decision so given will be regarded as given in a purported and not a real exercise of jurisdiction, leaving the jurisdiction in law constructively unexercised, and the tribunal liable to the issue of a prerogative writ of mandamus to hear and determine the matter according to law: R v Board of Education [1910] 2 KB 165."

The need for care was emphasised by Brennan, Deane, Toohey, Gaudron and McHugh JJ in Craig at 179-180 when they said:

"In contrast, the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error. Similarly, a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error."

It is important that this Court should not erode the line between mere mistake within jurisdiction and a mistake which is such as to constitute a failure to exercise a jurisdiction.

In the present case, having read the Magistrate's reasons with care, my conclusion is that although the Magistrate correctly stated the relevant principles, in the end he decided that any consideration of the application of those principles should be undertaken by the trial Court. His reasons do not contain any indication that he balanced the public interest in protecting the identity of a police informer, or information provided by a police informer, against the public interest in a fair trial in which the Court will have before it all relevant material. The Magistrate appears to me to have proceeded on the basis that it was desirable that the claim to immunity should be decided by the trial Court. The Magistrate seems to have been distracted by reference in the authorities to the fact that the trial Judge will be in the best position to determine what should be done in a particular case. Those statements do not mean that a Magistrate is not to undertake the so called balancing exercise when a claim to immunity is made at a preliminary examination.

For those reasons, and acknowledging that it will only be in rare cases that a failure to exercise jurisdiction will be made out, I am satisfied that this is one of those cases.

In the circumstances, but for what appears later, it would be appropriate to quash the order by which the Magistrate refused to permit Mr Haydon access to the material produced.

The question would then arise of whether the matter should be returned to the Magistrate for him to rule upon the Director's application, or whether this Court should decide upon the Director's claim of public interest immunity.

The reluctance of this Court to interfere in criminal proceedings, particularly proceedings in the Magistrates Court, is well established. Perry J has referred to some of the relevant authorities. But the present case is an unusual one. The issue before the Magistrate raises an important and difficult question of law. The Court has heard full submissions from the parties. The preliminary examination is proceeding, and the application made to this Court has not disrupted the course of those proceedings. While a decision that the documents in question must be produced for inspection would have some impact on the proceedings, there are practical reasons why it is desirable to resolve the issue now if possible. The effect of a conclusion that the Magistrate has not exercised his jurisdiction is that the question of public interest immunity will, in any event, be re-argued before the Magistrate. In other words, the issue will either be decided here or will be re-visited in the Magistrates Court. In all the circumstances, I consider that it is appropriate for this Court to exercise its power to grant a declaration to enable it to decide whether or not the claim of public interest immunity is made out.

In Smith (1996) 86 A Crim R 308 at 311-312, the Court of Criminal Appeal of New South Wales said:

"There is powerful authority for the proposition that, at common law, when a claim for immunity 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 another. The balance has already been struck; it falls on the side of non-disclosure except where, at a criminal trial, disclosure could help show that the accused is not guilty: see D v National Society for the Prevention of Cruelty to Children [1977] UKHL 1; [1978] AC 171 at 218; Cain v Glass (No 2) (1985) 3 NSWLR 230 at 246-247. Contrary views, in support of a conclusion that a balancing exercise is still required, have been expressed: see, eg Meissner (1994) 76 A Crim R 81. Section 130 of the Evidence (Consequential and Other Provisions) Act 1995 (which, although the learned magistrate was not referred to it, applies to the committal proceedings against Smith) appears now to require a weighing of competing interests. Even so, at the very least, the Attorney General is entitled to rely upon the high importance which this aspect of the law of public interest immunity attaches to the protection of the identities of police informers, and the generally accepted reason for that importance."

The same view is expressed by McHugh JA in Cain v Glass (No 2) (1985) 3 NSWLR 230 at 246-247, where His Honour said:

"... The informer rule, however, has one unique characteristic: contrary to the submission of the appellants, the court does not weigh the public interest in adducing evidence relevant to curial proceedings against the public interest in maintaining a flow of intelligence concerning the commission of crimes."

His Honour went on to say (at 248) that in a case falling under the informer rule there was no question of "weighing competing public interests", that the rule was absolute and that it was to be relaxed only when, as Lord Diplock put it in D v National Society for the Prevention of Cruelty to Children [1977] UKHL 1; [1978] AC 171 at 218:

"... disclosure of the identity of the informer could help to show that the defendant was innocent of the offence."

However, McHugh JA recognised that a different approach appears to have been taken by the High Court in Alister v The Queen [1984] HCA 85; (1984) 154 CLR 404 and in a number of other decisions. In Cain Priestley JA took the view (at 242) that it was for the Court to weigh against each other the public interest in avoiding damage from the production of the documents in question, and the public interest in facilitating a just result in the litigation. Kirby P appears to have agreed on this point with the reasoning of McHugh JA (see at 234 C-D) but it is not entirely clear that he did so.

The contrary view is that the correct approach is that stated by Gibbs CJ in Alister in the passage cited by Perry J. There is plenty of authority to support that approach.

Either way, the Court is required to make an assessment of the significance of the relevant material to the defence case, when disclosure is sought by an accused person. It will be easier for the Court to do so if the Court inspects the material, but as Alister demonstrates, the Court does not inspect the material as a matter of course. In the present case, there is no objection to the Court doing so.

In my opinion there is a good deal to be said for the view expressed by the Court in Smith. But it seems to me, with respect, that by implication the High Court in Alister and in Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1 has proceeded on the basis that the Court must weigh competing interests. The main difference may be that, on the approach taken in Smith, the strength of the claim for non-disclosure is not to be assessed or weighed, the Court merely considering the significance or possible significance of the material for the defence case. If the competing interests are weighed, there appears to be more scope for the qualitative assessment of the strength of the claim for non-disclosure. Be that as it may, in the present state of authority I consider it safer to take the approach that the Court is required to weigh the competing interests.

I am satisfied that the claim made is capable of being supported by reference to public interest immunity. The relevant statement was obtained from Mr Vlassakis, as I understand it, shortly after three of the other accused had been arrested, but at a relatively early stage of the police investigation. The statement is a very long one, and no doubt provided the police with substantial useful information. In a case like this, one can well understand that even if Mr Vlassakis did not disclose much that was completely unknown to the police, his statement would have been able to put events into a context and sequence that, subject to verification, were capable of being of considerable assistance to the investigating police. The statement was provided on the basis that the making of it would remain confidential. A public interest in non-disclosure of the making of the statement, or of its contents, arises because Mr Vlassakis fell into a well recognised category of informant. Although he was himself a suspect, he was a person prepared to provide important information to the police, for the purposes of an investigation, under conditions of anonymity, and if the anonymity of such persons is not protected there is a real risk that the sources of such information will dry up. The reasons why they are likely to dry up do not require to be stated.

Accordingly, in my opinion, the fact of the statement, and its contents, are capable of attracting immunity from disclosure in court proceedings.

I agree with Perry J that the disclosure that Mr Vlassakis is the person who made the statement is relevant. That disclosure appears to have been made, judging by the transcript before the Magistrate, because the prosecutor was under the impression that the Magistrate required this to be done.

The disclosure of the name of the maker of the statement is not the end of the matter. If disclosure were the end of the matter then, as the Court observed in Smith (at 313), the public interest immunity "could be frustrated by an accident, or by the malice of a witness who blurted out the name of an informer in open court". However, in the present case the name of the informant is now known to the persons with a prime interest in knowing the name, that is, the other accused. What remains is the general rule, the desirability of protecting informants, without there being any possibility of protecting the anonymity of Mr Vlassakis. But it is one thing for the accused to know that Mr Vlassakis has provided information to the police, including information that apparently inculpates one or more of them and might exculpate one or more of them to some extent. Access to the detail of that information is another thing. It is conceivable that allowing access to the information could put Mr Vlassakis at greater risk than does the fact that the accused are aware that he is the informant.

Another relevant matter is the fact that there is no suggestion in the present case that disclosure of the information in question would prejudice ongoing investigations, would reveal police practices or procedures that should be kept secret, or would identify other informants or sources of police information.

In short, on one side of the scales is an important general rule against disclosure, qualified in the present case by the fact that the object of the general rule in this particular case can no longer be achieved, except to the extent that disclosure of the content of the statements might increase the risk to which Mr Vlassakis is already exposed by the disclosure of his identity.

There is one procedural point which it is convenient to mention here. At no stage did the Director of Public Prosecutions file an affidavit setting out the basis upon which public interest immunity was claimed, and the matters advanced in support of the claim. That should have been done. It is true that in one sense the basis of the claim is obvious. It is to protect the anonymity of an informant. But there are a number of matters that should have been dealt with by the affidavit, and some of them were only clarified in submissions before the Full Court. It is possible that if the matter had been dealt with as it should have been dealt with, the identity of the informant would not have been disclosed before the Magistrate, at least not without more careful consideration of the question of whether it should ever have been disclosed. In a matter as important as this the appropriate procedures should be followed. The need to express the basis of a claim with reasonable precision, which arises when a claim is substantiated by an affidavit, is a valuable discipline.

Having said that, I now turn to the other aspect of the balancing process. What is the question that the Court should ask itself about the significance of the material to the defence case? In a case in which the issue is protecting the anonymity of an informant, or protecting information received from an informant, how important must the material in question be to the defence case for the Court to conclude that on balance the public interest comes down in favour of disclosure?

An examination of the authorities reveals that different judges have expressed in different ways the quality or significance that information must have before the public interest will come down on the side of disclosure. In saying that I recognise that the way in which the matter is expressed will be influenced by the nature and strength of the public interest in favour of non-disclosure. In some cases the matter is stated as if disclosure will be ordered only if the material is essential for the successful defence of a charge, or is likely to make the difference between innocence and guilt. That is what one might call the strict approach. In some cases, one finds expressions suggesting that it is sufficient if the material might substantially support a defence case, or might make the difference between innocence and guilt. And then in other cases one finds statements suggesting that it is sufficient for disclosure if the material may be of substantial assistance to the defendant in meeting the case for the prosecution.

It is not necessary for me to review the case law in point. That was done by Brooking J in Jarvie v Magistrates' Court of Victoria [1995] VicRp 5; [1995] 1 VR 84. The approach that His Honour took in Jarvie was approved and followed in reasons given by Bleby J in R v Mason (2000) 77 SASR 105; [2000] SASC 161 at [36]- [45]. Mullighan J and I agreed with those reasons.

I agree with the observations of Brooking J that the general expressions used in some of the cases should not be taken as intended to be precise assessments of the quality or significance that material must have before disclosure will be required. I am content, with respect, to adopt the approach that Brooking J adopted (the other members of the Court agreed) in Jarvie, after his review of the authorities. He said (at 90):

"But it seems to me that the overriding need for a fair trial must mean that in no circumstances can the identity of a witness be withheld from a defendant if there is good reason to think that disclosure may be of substantial assistance to the defendant in combating the case for the prosecution."

Even this statement provides no more than a general guide. It is perhaps helpful to add that the fact 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 the public interest in non-disclosure. This is made clear by the reasons of some of the members of the High Court in Alister. In Alister, the fact that the relevant material might provide material which might bear on the credit of a key witness for the prosecution was not enough for the Court to order disclosure. It was not known whether the material would have the suggested effect, and even if it did there was other material confirming the relevant witness's evidence, and that other material would remain even if the credit of the relevant witness were demolished: see (1984) 154 CLR at 438 Wilson and Dawson JJ, at 454-455 Brennan J. However, as to the decision in Alister, it is important to bear in mind that that case was primarily concerned with the question of whether the Court should inspect the relevant documents, and that the observations referred to were made without knowledge of the contents of the documents. It is also relevant to bear in mind that each case will be different, and one must be careful about converting observations made in a particular context into hard and fast rules. Thus, I respectfully agree with a further observation that Brooking J made in Jarvie at 91:

"There is no reason why, in a strong enough case, the necessary substantial prejudice [to the defendant] could not consist in the inability to gather and use material bearing on the credibility of a witness for the prosecution of some importance where the credibility of that witness was really in question."

To my mind, the important thing is to identify the relevant general principle, and then to do one's best to apply that general principle to the circumstances of the particular case. Finally, on this aspect of the matter, I mention that the approach taken by Brooking JA in Jarvie was followed by the Court of Criminal Appeal of New South Wales in Meissner (1994) 76 A Crim R 81. Jarvie was not referred to by that Court in Smith.

I return now to the balancing of the relevant public interests.

I must balance the importance of the public interest in the preservation of anonymity, and in the protection of material provided by informers, against the public interest in what I will compendiously describe as a fair trial in which the Court has access to all relevant material. In doing that must I consider whether the disclosure of the relevant material may be of substantial assistance to the defence in the present case? If the answer is in the affirmative, it will usually be appropriate to order disclosure. I put the matter in that qualified fashion, because in each case it is also necessary to consider, in a qualitative fashion, the strength of the public interest in non-disclosure.

I have read a summary, prepared by Perry J, of the statement made by Mr Vlassakis. It suffices to say that the statement implicates Mr Haydon in some of the murders charged, but suggests that he is not involved in others. It tends to implicate the other accused generally. I go this far in disclosing the contents of the statement because that much has already been disclosed.

On its face, the contents of the statement are not admissible against Mr Vlassakis, because of the circumstances in which the statement was obtained. That appears to be common ground.

The material in the statement will be admissible against Mr Haydon and the other accused only if Mr Vlassakis is called as a witness against them by the Prosecution. In that event, of course, what would become admissible would be the evidence given by Mr Vlassakis, and not the statement itself. However, in those circumstances, the statement might be of some significance for the purposes of cross-examining Mr Vlassakis. However, as things stand, there is no prospect of this happening. If Mr Vlassakis gives evidence in his own defence, it is possible that other accused might be able to cross examine him by reference to the statement provided to the police. What this indicates is that from a forensic point of view, the statement made by Mr Vlassakis is of doubtful significance in the case.

In short, this is not a statement from a witness who will be an important witness for the Prosecution at trial. It is a statement by a person who may not be a witness at all, let alone a witness against Mr Haydon or the other accused. One cannot say that the statement will necessarily feature at the trial.

That is not the end of the matter. It is conceivable that access to the contents of the statement might be of assistance to the defence. But, having considered the statement, it is by no means obvious that that is so. The Prosecution case against the accused will not depend, as best I can tell, on the contents of the statement made by Mr Vlassakis. That statement might have provided the investigating police with a helpful framework within which to conduct their investigation. But the Prosecution case at trial will not rest upon the statement. Nor am I satisfied that to the extent that the statement exculpates Mr Haydon, the contents of the statement would be of any significant assistance to him at trial.

As things stand, I am not satisfied that the disclosure of the statement would be or even might be of substantial assistance to Mr Haydon, or to any of the other accused, in combating the case for the Prosecution. In my opinion the most one could say at present is that it is possible that in some respects the statement might assist Mr Haydon, and it is possible that if the credit of Mr Vlassakis becomes material, the statement might be of some assistance in challenging his credit. But at this stage that is quite speculative.

For those reasons, I am satisfied that at this stage the claim of immunity should be upheld. I am so satisfied, even though I recognise that in the present case the object of the general rule against disclosure has been substantially eroded by what has already occurred. Nevertheless, the general rule itself remains of importance.

In the alternative, although satisfied that the Magistrate erred, I would decline in the exercise of the Court's discretion to order the Magistrate to further consider the matter. I would do so on the basis that on the information available to this Court, there is nothing to indicate that the claim of immunity should be rejected, and on the basis that this Court should not encourage applications that will disrupt the conduct of a preliminary examination.

I agree with Perry J that the claim against the Director of Public Prosecutions is misconceived. That claim should be dismissed. I agree with Perry J also that the submission that the Magistrate lacked jurisdiction to proceed, because the Director had not fully complied with s 104, is equally misconceived, and should be dismissed.

OLSSON J I agree with the statement of relevant principles expressed by Perry J. I further agree, for the reasons expressed by the Chief Justice that, although the learned magistrate erred in failing to decide the matter before him, nevertheless, at the present time and in the present circumstances, the claim of public immunity should be upheld. It follows that I also agree with the orders proposed by Perry J.

That said, I would wish to emphasise that such a conclusion is very much the product of the scenario as it currently stands. If, in due course, Mr Vlassakis elects to give evidence, quite different considerations will plainly arise. The situation will obviously need to be reviewed in light of the then circumstances, as they develop.

PERRY J This case raises an important question as to whether or not a statement to the police made by one of several defendants charged with murder, may be withheld from the other defendants on the ground that it is subject to public interest immunity.

The plaintiff, Mark Ray Haydon, together with two others, John Justin Bunting and Robert Joe Wagner, is charged on an information filed in the Magistrates Court with ten counts of murder. On the same information, a fourth person, James Spyridon Vlassakis, is charged with five of those murders.

A magistrate is conducting the preliminary examination, which commenced in December 2000. It is still proceeding.

The case is complex. Over 1,300 statements of witnesses have been filed in the Magistrates Court in accordance with the procedure laid down in s 104 of the Summary Procedure Act 1921. Leave has been given for many of the authors of the statements to be presented for cross-examination.

Before the commencement of the preliminary examination, the prosecutor intimated that there were a number of other statements which would in due course be filed. The defendants argued that the commencement of the preliminary examination should be adjourned until all statements had been filed and served. The magistrate refused to do so.

Separately, an argument arose as to an intimation by the prosecutor that certain statements which would otherwise be discoverable pursuant to s 104, would not be filed or served "on public policy grounds". That phrase was intended to identify a claim of public interest immunity attaching to what was described as a "discrete body of material". I will hereafter refer to those documents as "the material".

The material primarily comprises video tapes and transcript of a record of interview between the defendant Mr Vlassakis and police officers. That interview took place over six days, between 24 May 1999 and 2 June 1999.

One of the four defendants, Mr Bunting, issued a subpoena for the production of the material. The material was produced to the court but withheld from inspection by the defendants, pending a ruling on the matter. After hearing argument, the magistrate held that the prosecutor had made out his claim for public interest immunity, and he declined to order disclosure of the material or to allow Mr Bunting to inspect it.

The magistrate's written reasons supporting that decision were delivered on 10 November 2000.

On 21 November 2000, the solicitors for Mr Haydon issued a witness summons on his behalf requiring the production of the same documents. When Mr Haydon's counsel subsequently sought access to the material on 27 November 2000, the magistrate made a short ruling dismissing the application. His ruling is recorded in transcript in the following terms:

"This is an application by one of the defendants for access to certain material referred to in previous proceedings held in camera. I decline to grant such access. When another of the defendants applied for such access, I declined to order access for the same reasons in my ruling of 10 November."

Subsequently, on 29 November 2000, Mr Haydon issued an inter partes summons out of this Court naming the Magistrates Court of South Australia and the Director of Public Prosecutions ("the Director") as defendants. In the summons he seeks, inter alia, relief which I paraphrase as follows:

(a) A mandatory injunction requiring the magistrate to adjourn the preliminary hearing until the Director has complied with his obligations under Part V, Division II of the Summary Procedure Act, that is, to file all of the statements which were liable to be filed under s 104 of that Act.

(b) An order in the nature of certiorari calling up and quashing the decision of the magistrate made on 27 November 2000 declining to grant access to Mr Haydon to the material.

(c) Declarations that no public interest immunity has been established or exists over the material, and that Mr Haydon should be permitted to inspect and copy it.

(d) As against the Director, an order in the nature of certiorari quashing his "decision" not to file and serve the material, a mandatory injunction requiring him to produce and file the material, and a declaration that he is obliged to "comply with his obligation" to do so under the Summary Procedure Act 1921.

Pursuant to SCR r 98.03, the inter parte summons, being a summons seeking judicial review, could not be served without leave of the court. Williams J heard the application for leave to serve the proceedings. He refused leave to serve the proceedings on the Magistrates Court but granted leave for them to be served on the Director. He gave reasons for the refusal of leave to serve the Magistrates Court recorded in transcript on 1 December 2000. Subsequently, after re-opening the argument on 15 December 2000, he gave further reasons in writing published on 20 December 2000.

Williams J refused an application by Mr Haydon for leave to appeal to the Full Court from his refusal of leave to permit service on the Magistrates Court, whereupon Mr Haydon renewed his application for leave to appeal by application direct to the Full Court.[1] Rather than deal with the matter in private pursuant to SCR r 94.03(c), the Full Court ordered that the application be heard in open court.

Separately, by order made on 20 December 2000, Williams J ordered that the application for judicial review against the Director of Public Prosecutions be heard by the Full Court.[2]

In the result, when the matter came on for hearing before the Full Court on 8 February 2001, the Court had before it the application for judicial review insofar as it sought relief against the Director, and the application for leave to appeal against the refusal of Williams J of leave to serve the application for judicial review upon the Magistrates Court.

Mr Bleby, who appeared for the Magistrates Court, intimated that he had no opposition to the Court proceeding to determine the merits of the application for judicial review against the Magistrates Court if it was otherwise disposed to allow the appeal against the order refusing service of it. At the same time he intimated that his client would submit to whatever order the Court made in disposing of the proceedings, and he did not wish to take any further part in the hearing.

The co-defendants Mr Bunting and Mr Wagner appeared by counsel as interveners but did not address any argument to the Court. Mr Vlassakis appeared by counsel, Mr Tilmouth QC, as an intervener and put forward an argument opposing disclosure of the material, seeking the dismissal of the application for judicial review and an order upholding the refusal of leave to serve the proceedings on the Magistrates Court.

Mr J. Lyons with Mr S. Abbott appeared as counsel for Mr Haydon.

Ms Abraham QC, who appeared with Ms S. McDonald for the Director, advanced arguments in support of the ruling made by the learned magistrate upholding the claim for public interest immunity, and opposed the appeal against the refusal to permit service on the Magistrates Court.

The case raises important questions concerning the availability of a claim for public interest immunity said to attach to information given in confidence to the police by an informer.

I will first make some general observations as to the principles pursuant to which a claim for public interest immunity falls to be determined.

1. An objection based on public interest immunity may be taken on the basis that it would be against the public interest to disclose the contents of a particular document, or because the document in question belongs to a class of documents which ought not to be disclosed, irrespective of the contents.[3]

2. It is unnecessary for present purposes to express a view as to whether or not the so-called "class" immunity is confined to documents which relate to the "framing of government policy at a higher level".[4] It should, however, be noted that even in the case of documents the subject of "class" immunity, the immunity is not absolute and disclosure may be ordered if the public interest so requires.[5]

3. It has been recognised since at least the 18th century that evidence disclosing the identity of police informers may be the subject of a claim for privilege. As it was put by Eyre LCJ:[6]

"It is perfectly right that all opportunities should be given to discuss the truth of the evidence given against a prisoner; but there is a rule which has universally obtained on account of its importance to the public for the detection of crimes, that those persons who are the channel by means of which that detection is made, should not be unnecessarily disclosed: if it can be made appear that really and truly it is necessary to the investigation of the truth of the case that the name of the person should be disclosed, I should be very unwilling to stop it, but it does not appear to me that it is within the ordinary course to do it. ......"

4. Although there have been differing views expressed on the matter, in my opinion, the better view is that the so-called police informer privilege is part of the doctrine of public interest immunity. That view is supported by the observations of McHugh JA, as he then was, in Cain v Glass (No 2),[7] and by the approach adopted by Priestley JA in the same case. Counsel for all parties in this case did not challenge that approach.

5. Whether the immunity applies to a particular document for which police informer immunity is claimed, depends upon its contents and not upon its characterisation as part of a class of documents.[8]

6. Although a claim for public interest immunity may be raised by any party to the proceedings, it is not a claim inter partes, and may be raised by any person, whether a party to the proceedings or not, or the court may raise the question of its own initiative.[9]

7. In all cases where the question of public interest immunity arises, it is for the court and not for the executive government to determine whether or not the immunity exists and should be enforced.[10]

8. In determining a claim of public interest immunity, the court undertakes a balancing exercise, weighing on the one hand the asserted public interest against disclosure against the public interest in ensuring that the court has access to all relevant evidence. As it was put by Gibbs CJ in Alister v The Queen:[11]

"Sankey v Whitlam establishes that when one party to litigation seeks production of documents, and objection is taken that it would be against the public interest to produce them, the court is required to consider two conflicting aspects of the public interest, namely whether harm would be done by the production of the documents, and whether the administration of justice would be frustrated or impaired if the documents were withheld, and to decide which of those aspects predominates. The final step in this process - the balancing exercise - can only be taken when it appears that both aspects of the public interest do require consideration - that is when it appears, on the one hand, that damage would be done to the public interest by producing the documents sought or documents of that class, and on the other hand that there are likely to be documents which contain material evidence. The court can then consider the nature of the injury which the nation or the public service would be likely to suffer, and the evidentiary value and importance of the documents in the particular litigation."[12]

9. It is desirable, but not essential, that a claim of public interest immunity should be supported by an affidavit or certificate of the Minister concerned, or a senior public servant, although neither an affidavit nor a certificate is to be regarded as concluding the issue.[13]

10. When a claim for public interest immunity is raised, the judge may inspect the documents sought to be protected.[14] In this case, all parties consent to inspection if the court wishes to do so.

11. Confidentiality is not a separate head of immunity, but it may be a material consideration to take into account in dealing with a claim of public interest immunity.[15]

12. A claim for public interest immunity may be raised in the course of the preliminary examination of a charge of an indictable offence.[16]

The central question which arises in this case is whether or not the learned Special Magistrate erred in applying those principles, and if he did, whether the circumstances justify intervention by this Court.

In my opinion, the learned Special Magistrate did fall into reviewable error.

Given that the relevant ruling was made in the course of a preliminary examination, I will first say something as to the scope and purpose of such an examination.

In The Queen v Harry: ex parte Eastway[17] King CJ, after acknowledging that the principal purpose of a preliminary examination was to determine whether there was sufficient evidence to put the accused on trial, went on to say:

"But it is not the only purpose. The examination also serves the purpose of acquainting the accused with the case which is to be made against him at trial and of affording him an opportunity to question witnesses with a view to eliciting evidence which may assist the defence at trial."

It follows that it is in the interests of justice and only fair to the person accused with serious crimes that he or she should be given the opportunity during the course of a preliminary examination, not only to test the strength of the case being advanced by the prosecution, but also to secure the production out of the hands of the prosecution of material which might assist him or her in the defence to the charge.

By those observations I do not mean to convey that in the context of a preliminary examination the rules as to whether or not public interest immunity is applicable to a particular item of evidence differ, or are any less stringent than would be the case, for example, at the trial. But the nature and seriousness of the charges the subject of the preliminary examination is a matter to be taken into account, in the balancing exercise.

Ordinarily, questions of privilege or public interest immunity aside, material such as statements of the kind now in question will be produced by the prosecutor pursuant to s 104 of the Summary Procedure Act 1921.

The combined effect of s 104, s 106 and s 107 is that the prosecutor must file and serve on the defendant a copy of all material answering the description in s 104(1)(a), which would include "material relevant to the charge" (s 104(1)(a)(iv)), but excluding material which would be relevant only to questions of credit of witnesses, or evidence "the truthfulness or reliability of which the prosecution distrusts",[18] or material "which must inevitably be rejected as inadmissible".[19]

There appears to be some inconsistency in the position taken by the Crown with respect to s 104 in its application to the material in question.

In a letter from the Director of Public Prosecutions to Mr Abbott, solicitor for Mr Haydon, dated 11 August 2000 the Director states:

"In addition please note that there is a discrete body of material which would usually be filed in the Magistrates Court and served on defence, pursuant to s 104(1)(a) of the Summary Procedure Act, 1921 which has not been filed or served by the Director on public policy grounds."

The "discrete body of material" there referred to includes the record of interview with Mr Vlassakis. The implication in the letter is that the record of interview would be discoverable pursuant to s 104, were it not for the claim "on public policy grounds".

On the other hand, during the course of argument before the Full Court, Ms Abraham QC for the Director said:

"What we are dealing with here ... is a document that is blatantly [sic] inadmissible in any proceedings. Therefore .... there is no need to file it .... under s 104."

However, it seems to me to be unnecessary further to pursue the question whether or not the record of interview is otherwise liable to disclosure pursuant to s 104, as the situation was overtaken by the issue of the subpoena by Mr Haydon, as a result of which different considerations arise.

The subpoena duces tecum was issued pursuant to s 20 of the Magistrates Court Act 1991. That section entitles a party to require the production under the compulsion of the subpoena of, inter alia, "evidentiary material". Evidentiary material is defined in the Magistrates Court Act broadly, to include any document of "evidentiary value".[20]

It has not been suggested by counsel for any party that, subject to the claim for public interest immunity, the record of interview with Mr Vlassakis is not within the scope of material which may be the subject of a subpoena issued pursuant to s 20.

It follows that the documents were properly produced pursuant to the subpoena, and the only impediment to inspection of the documents by the plaintiff arises by reason of the claim for public interest immunity.

In the course of the written reasons which he delivered in support of his ruling in favour of the claim to public interest immunity, the learned Special Magistrate quoted certain questions recorded in the transcript of the video taped interview with the defendant Mr Vlassakis in which various assurances were given to Mr Vlassakis which are in turn relevant to the claim for public interest immunity. He quotes the questions as follows:

"Q9. ... we have been investigating the disappearance of the following persons; a Clinton Trezise, a Barry Lane, a Susan Allan, a Ray Davies, a Elizabeth Haydon, and more recently a person by the name of David Johnson. As a result of our investigations, into these matters we attended at Snowtown on the 29th May 1999 where we located a number of barrels in an old bank vault. We will not be issuing you with a caution, and as a result the statement that you make will not be used against you in any presidings (sic). Once this statement has been completed it will be forwarded to the Director of Public Prosecutions. This statement will then be checked and assessed for example, as to the accuracy and the completeness in light of all the evidence available. It is only then that a decision will be made by the Director of Public Prosecutions as to whether or not a full immunity will be granted to you. It is agreed by the Department of Public Prosecutions that this statement is privileged, and its contents or existence are not to be disclosed to any person or party except by any by an order (sic) of the court. Do you understand that?

Q11. The statement that you make to us will it be truthful and honest?

The learned Special Magistrate goes on to point out that the "terms under which the interview was conducted", by which I assume he refers to similar statements made by the questioner, were repeated from time to time during the course of the interview and at the commencement of each of the days upon which it was conducted.

Later in his reasons the learned Special Magistrate states:

"In accordance with the terms under which the record of interview was conducted, the interviewed defendant has the expectation that his statement and its contents or existence are not to be disclosed to any person or party except by an order of the court. It is my view that at this stage of proceedings that expectation should prevail over any interest the applicant/defendant may have in seeing what is in the statement and the other material retained by the Crown.

The expression 'the court' invites a question 'which court?'. There are ultimately two issues to be determined. First, whether disclosure to another party or parties may be required, and, if so, what use (if any) can be made of the material. It is highly desirable that the one tribunal should determine each of those issues. In my view that tribunal should be the trial judge. I am fortified in that view by the following passage from the judgment of Hunt CJ at CL in Attorney General for New South Wales v Stuart (1994) 34 NSWLR 667 at 683:

'It is, in any event, no part of a magistrate's function in committal proceedings to concern himself or herself with issues which would normally fall within the discretionary powers of a trial judge or to pre-empt any exercise of the trial judge's discretion: R v Grassby (1988) 15 NSWLR 109 at 118-119; Barron v Attorney-General for New South Wales (1987) 10 NSWLR 215 at 216-218; Moss v Brown (1979) 1 NSWLR 115 at 125. All three cases make the point that committal proceedings do not constitute (and they should not be allowed to develop into) a mini trial in advance of the trial upon indictment.'"

When in the second of those paragraphs the learned Special Magistrate refers to "the expression 'the court'", he is clearly referring to the word "court" when it appears in the agreement acknowledged in question 9 that the contents or existence of the statement would not be disclosed "except by order of the court". In his observations which follow, it appears that he comes to the view that the appropriate court to contemplate the making of any such order is the trial court. Hence the passage:

"It is highly desirable that the one tribunal should determine each of those issues. In my view that tribunal should be the trial judge."

When he earlier identifies the first of those issues as "whether disclosure to another party or parties may be required", presumably he is postulating the question whether or not the claim for public interest immunity should be upheld.

It follows that, although earlier in his reasons for ruling the learned Special Magistrate correctly refers to the "balancing exercise", which is part and parcel of the process to be followed in considering a claim for public interest immunity, eventually he reaches the conclusion that that exercise should be left to the trial judge.

The learned Special Magistrate reasoned his way towards that conclusion by holding that the "expectation" in the mind of Mr Vlassakis engendered by the agreement that his statement would not be disclosed other than by order of the court (which the learned Special Magistrate considered should be the court of trial) should "prevail over any interest the applicant/defendant" might have in being given access to the material the subject of the claim to immunity.

The proper conclusion to draw from the learned Special Magistrate's reasoning is that at the end of the day he did not embark upon the process of determining the claim to immunity, let alone apply the test which he had earlier identified.

In doing so, he erred, in that once the claim for immunity was made, he was obliged to rule on it.

His failure to rule on it amounts to jurisdictional error:

"A failure to exercise jurisdiction is a jurisdictional error, although prima facie, it is not an error involving an excess or want of jurisdiction ..."[21]

Furthermore, it constitutes jurisdictional error which may be the subject of judicial review.

"Judicial review on the ground of excess or want of jurisdiction is available where a body purportedly acting in exercise of jurisdiction has no jurisdiction to act in the particular way. Judicial review on that ground stands in contrast with judicial review on the ground of a wrongful failure or refusal to exercise jurisdiction. In the former case, there is no jurisdiction to exercise; in the latter there is jurisdiction but no exercise of it."[22]

See also the observation by Malcolm CJ in Carter and Ors v Drake[23] when, after referring to Public Service Association (SA) v Federated Clerks' Union he stated:[24]

"It follows that, although a failure to exercise jurisdiction is not an excess or want of jurisdiction, it is nonetheless a form of jurisdictional error liable to be quashed by certiorari ...."

I would add, with respect, the qualification that what is liable to quashed by certiorari is any order made in consequence of the failure to exercise jurisdiction.

Here, the order which was made in consequence of that failure on the part of the learned Special Magistrate was the order or ruling of the learned Special Magistrate made on 27 November 2000 in which he declined to grant access to the material in question.

In those circumstances, it is liable to be quashed on review by this Court.

The question then arises as to whether the matter ought to be left to the learned Special Magistrate to make a fresh ruling in the light of the judgment of this Court, if necessary under the compulsion of an order in the nature of mandamus, or whether this Court should pronounce on the merits of the claim for public interest immunity.

The summons issued by the plaintiff invites this Court to make a declaration, inter alia, "... that no public interest immunity has been established or exists over" the relevant material.

While I accept that criminal proceedings should not be fragmented, and that this Court is reluctant to interfere with the progress of such proceedings,[25] it is proper in an appropriate case, albeit rarely, for the Supreme Court to make a declaration affecting the conduct of committal proceedings.[26]

The Supreme Court Rules specifically provide for the making of a declaration if sought in a summons for judicial review: see SCR r 98.01(3):

"Declarations or injunctions may be sought in a summons for judicial review, and on such a summons the Court may grant the declaration or injunction claimed in lieu of, or in addition to, any order in the nature of, or having the effect of, a prerogative writ at common law if it considers that having regard to:

(a) the nature of the matter in respect of which relief may be granted by way of an order having the effect of an order for mandamus, prohibition, certiorari or quo warranto;

(b) the nature of the persons and bodies against whom relief may be granted by way of such an order; and

it would be just and convenient for the declaration or injunction to be granted on a summons for judicial review."

In my opinion, this Court having received full argument by all interested parties on the matter, the most expeditious course is for this Court to rule upon the merits of the claim for immunity.

I will, therefore, proceed to deal with the merits of the claim.

As no affidavit or certificate has been furnished by the Minister or any person in authority, such as the Commissioner of Police, giving particulars of the claim for immunity, the Court invited Ms Abraham QC to state to the Court the precise basis upon which the claim for privilege was based.

"To disclose information in the circumstances in which this interview was given .... would mean that the administration of criminal justice would be hindered because no witness, potential witness, potential suspect, or even accused would be able to deal in confidence with the Director of Public Prosecutions."

She went on to say that if the claim is upheld, the Director would be bound not to "ignore in the undertaking that he gives" of this kind (by which I assume she is referring to the so-called agreement between the Director and Mr Vlassakis) .... "so that in the future other people in the position of witnesses, or potential suspects, know that they can have ... trust in the Director."

Ms Abraham QC defended the failure to file an affidavit detailing the claim for immunity on the footing that what she asserted was an obvious inference to draw from the nature of the case and the terms of the so-called agreement with Mr Vlassakis.

Although in his reasons for ruling the learned Special Magistrate described the transcript of the interview, which he had read, as embodying "statements" which were "exculpatory and represent an attempt to incriminate and inculpate the other three defendants, particularly two of them, in the alleged offending", in an affidavit of Mr Abbott, solicitor and counsel for the plaintiff Mr Haydon, Mr Abbott deposes to the fact that another declaration which has been served on the plaintiff, being that of Frances McGrath, contains the following passage:

"James [Mr Vlassakis] told us that Mark [Mr Haydon] wasn't involved in much of it. He said that Mark wasn't even involved in his wife's murder until after it happened. He knew about it all and was up in the vault with them. It sounded as if John and Robert were the main instigators."

Mr Abbott goes on to suggest in his affidavit that it "would appear to be a reasonable inference that the plaintiff is, at least partially, exculpated by the co-defendant Vlassakis".

That inference, however, assumes the likelihood that what Mr Vlassakis is alleged to have told Frances McGrath would have been repeated by Mr Vlassakis to the investigating police officers when they interviewed him. I deal with that aspect of the matter later in this judgment.

In determining the claim for public interest immunity, the question arises as to the weight to be accorded the fact that the case concerns information given in confidence to the police, in determining where the balance should be struck between the competing public interests associated with disclosure.

In some of the earlier cases, the rule as to police informers has been regarded as almost a rule of law.

Frequently quoted in this context is the dictum of Lord Esher MR in Marks v Beyfus:[27]

"What, then, is the rule as to the disclosure of the names of informants, and the information given by them in the case of a public prosecution? In the case of Attorney General v Briant,[28] Pollock CB, discussing the case of Rex v Hardy,[29] says that on all hands it was agreed in that case that the informer, in the case of a public prosecution, should not be disclosed; and later on in his judgment, Pollock CB says:

'The rule clearly established and acted on is this, that in a public prosecution a witness cannot be asked such questions as will disclose the informer, if he be a third person ... and we think the principle of the rule applies to the case where a witness is asked if he himself is the informer.'

Now, this rule as to public prosecutions was founded on grounds of public policy, and if this prosecution was a public prosecution the rule attaches; I think it was a public prosecution, and that the rule applies. I do not say it is a rule which can never be departed from; if upon the trial of a prisoner the judge should be of opinion that the disclosure of the name of the informant is necessary or right in order to shew the prisoner's innocence, then one public policy is in conflict with another public policy, and that which says that an innocent man is not to be condemned when his innocence can be proved is the policy that must prevail. But except in that case, this rule of public policy is not a matter of discretion; it is a rule of law, and as such should be applied by the judge at the trial, who should not treat it as a matter of discretion whether he should tell the witness to answer or not."

The rule is stated less emphatically in Stephen's Digest of the Law of Evidence:[30]

"In cases in which the government is immediately concerned no witness can be compelled to answer any question, the answer to which would tend to discovery the names of persons by or to whom information was given as to the commission of offences.

In ordinary criminal prosecutions it is for the judge to decide whether the permission of any such question would or would not, under the circumstances of the particular case, be injurious to the administration of justice."[31]

However, once it is accepted that the rule as to police informers is subsumed within the general principles applicable to a claim for public interest immunity, the most that can be said about the position of police informers is that, generally speaking, the public interest against disclosure will be accorded great weight,[32] and strong arguments in favour of disclosure would have to be made out before it should be permitted. That much said, any ruling will still come down to the circumstances of the particular case.

Since writing the above observations, I have had the assistance of perusing a draft of the reasons for judgment prepared by Doyle CJ.

With respect, I agree with the comments which he makes as to the way in which the balancing process should be approached in a case such as this. More particularly, I agree with his adoption of the approach of Brooking J, identified in the passages which he quotes from Brooking J's judgment in Jarvie v Magistrates Court of Victoria.[33]

I accept, as Brooking J points out, that disclosure will not necessarily be limited to cases "where it is shown that disclosure will enable the innocence of the accused to be demonstrated".[34] I agree that the disclosure may be justified "... if there is good reason to think that the disclosure may be of substantial assistance to the defendant in combating the case for the prosecution",[35] and that this could extend to disclosure of material "bearing on the credibility of a witness for the prosecution ... where the credibility of that witness was really in question",[36] although I add that neither of those considerations, if shown to exist, will be conclusive. The balancing exercise must still be performed.

At one end of the scale may well be cases involving police informers in the drug trade, where the likelihood that the informer would be murdered if his or her identity was to be disclosed will weigh heavily in the scales.

This case is, however, unusual and very different from such cases.

The so-called informer's identity has in fact been revealed by the prosecutor in the proceedings. Furthermore, he is now a co-defendant to serious charges which can only be described as charges involving crimes of the most serious order imaginable.

It is not without significance that the so-called agreement with Mr Vlassakis expressly envisaged that the court might order disclosure, so that Mr Vlassakis was aware from the outset of that possibility. Notwithstanding that, he proceeded to give the statement.

As I have already pointed out, not only was Mr Vlassakis' identity revealed to the learned Special Magistrate, but Ms Abraham QC conceded in argument before this Court that disclosure of the record of interview would not prejudice ongoing investigations into the alleged offences, or reveal "police methods which may be used on other occasions and which need to be kept secret".

It seems to me that once Mr Vlassakis' identity as the author of the statements in question was revealed, and further, once he became a co-defendant to the criminal proceedings, the dynamics of the situation changed dramatically. It could no longer be suggested that the public interest against disclosure of the content of his statements to the police could properly be accorded such weight in the balancing process as might otherwise have been the case.

But against that, the considerations relevant to an evaluation of the weight to be given the public interest in ordering disclosure are, in this case, somewhat difficult to identify.

Mr Vlassakis' statement to the investigating detectives is a lengthy one; his interrogation extended over several days, and the engrossment of the transcript of the interview runs to some 848 pages.

Naturally enough, any defendant has an interest in what a co-defendant might have told the police. But that is not enough to justify disclosure, or even to weigh in the scales in the process of the balancing exercise.

To adopt the general test put forward by Brooking J in Jarvie (supra), is there "good reason to think" that disclosure of Vlassakis' statement to the investigating police officers might be of "substantial assistance" to Mr Haydon in "combating the case" against him?

The learned Magistrate observed in his reasons:

"... the statements are exculpatory and represent an attempt to incriminate and inculpate the other three defendants, particularly two of them, in the alleged offending."

I have earlier referred to the affidavit of Mr Abbott filed in support of the summons for review, in which he in turn refers to another statement, that of Frances McGrath. As I have indicated above, Mr Abbott suggested in his affidavit that, having regard to her statement, it "would appear to be a reasonable inference that the plaintiff is, at least partially, exculpated by the co-defendant Vlassakis".

Having had the benefit of reading Mr Vlassakis' statement, it would be more accurate to say that on his account of the matter there was a much more active involvement in the alleged murders on the part of Bunting and Wagner as opposed to Haydon. With respect to several of the alleged murders, there is very little in Mr Vlassakis' statement to implicate Haydon.

But whether that is "exculpatory" of Mr Haydon depends largely on how the prosecution case against Mr Haydon is pitched.

Furthermore, whether release of Mr Vlassakis' statement will materially assist Mr Haydon in mounting a defence to the charges depends to some extent on the nature of the defence.

But the nature of the defence has not so far been disclosed.

In that regard, I draw attention to the judgment of the Court of Appeal in Regina v Keane.[37] After referring to the judgment of Jowitt J in Reg v Melvins, [38] the court observed:

"... it is open to the defence to indicate to the prosecution a defence or an issue they propose to raise as to which material in the possession of the prosecution may be of assistance, and if that is done the prosecution may need to reconsider what should be disclosed."

Mr Vlassakis' statement is replete with much circumstantial detail as to the ten killings the subject of the charges.

The Court was informed by Ms Abraham QC, without objection, that the statement was obtained at a very early stage of the investigation.

It seems likely that the information given by Mr Vlassakis opened up a number of avenues of inquiry for the investigating police officers which may very well have led to the accumulation of a body of evidence against all of the defendants.

But that circumstance would not justify release to Mr Haydon of Mr Vlassakis' statement to the police. There is nothing to suggest that Mr Haydon would be in a better position to test the evidence which the police eventually accumulated against him, albeit with whatever assistance was given to them by Mr Vlassakis, if he was to have access to Mr Vlassakis' statement to the police.

Mr Vlassakis' police statement is inadmissible against Mr Haydon and could never form part of the prosecution case against him. The only possible use which could be made of Mr Vlassakis' statement to the police in the context of either the preliminary examination or the trial, is in the event that Mr Vlassakis gives evidence.

I find it difficult to think that it would be proper to preclude access to the material if Mr Vlassakis was to give evidence. But it would still be a matter of performing the balancing exercise, in the light of the circumstances as they might then exist.

It follows that, notwithstanding the fact that, for the reasons I have given, I would not view the case as one in which the arguments in favour of non-disclosure in the public interest as being so strong as it will commonly be where police informer evidence is involved, short of Mr Vlassakis giving evidence, the balance presently favours upholding the claim for public interest immunity.

The situation may be reviewed by any presiding judicial officer at any stage, either at the preliminary examination or at the trial, should Mr Vlassakis enter the witness box.

In my view, for those reasons, although the order of the learned Special Magistrate denying access by counsel for Mr Haydon to the material was made in error and is liable to be quashed, it should be affirmed for other reasons, namely, on the ground that the claim for public interest immunity should be upheld.

I turn to the action against the Director. This may be disposed of shortly.

The decision by the Director not to file the material pursuant to s 104 of the Summary Procedure Act 1921 is clearly not reviewable by this Court. It was no more than a consequence of a decision taken by him as to the interpretation of the section and as to the extent of his obligation, or more accurately, the obligation of the prosecutor, to file and serve material pursuant to the procedure set out in that section.

Any complaint that he had failed to comply with the section was a matter to be determined by the magistrate hearing the case, who had general control of the proceedings.

As to the remaining matter, that is, the application for a mandatory injunction requiring the Magistrate's Court to adjourn the preliminary hearing until all of the statements had been filed and served in accordance with s 104, this is equally clearly not a matter in which Mr Haydon has made out an entitlement to relief.

His contention that the learned Special Magistrate lacked jurisdiction to proceed with the preliminary examination unless and until all of the statements required under s 104 had been filed and served is misconceived.

The learned Special Magistrate had jurisdiction to proceed with the preliminary examination whether or not the prosecutor had fully complied with his obligations under s 104.

That is not to deny that if there had been a substantial shortfall in compliance with the section, the learned Special Magistrate had a discretion to stand over the preliminary examination until the matter had been rectified.

Neither would I want it to be thought that I would encourage magistrates to take a casual approach to compliance with s 104. It is important that magistrates insist that prosecutors take their obligations under s 104 seriously.

But in a particular case, circumstances will sometimes exist which make it difficult or impossible for all of the statements to be filed and served before the commencement of the preliminary examination. It may be that this will sometimes result in such a degree of prejudice to the defendant that the matter should be stood over until the situation was rectified.

In this case, the learned Special Magistrate was entitled to take the view that sufficient statements had been filed and served to inform the defendants of the substance of the case which they were facing. In those circumstances, he was entitled to refuse to adjourn the proceedings.

In doing so, he made a decision which was completely within his jurisdiction to decide, and there was nothing which would justify review of that decision by this Court.

(a) Granting leave to appeal against the order refusing leave to appeal, allowing the appeal against the refusal of leave to serve the summons upon the Magistrates Court, substituting an order giving leave to serve the proceedings upon the Magistrates Court, ordering that service of the proceedings be dispensed with, and ordering that the hearing of the application for leave to appeal be treated as the hearing of the claim made against the Magistrates Court in the summons.

(b) Declaring that the claim of public interest immunity with respect to the material in question should be upheld.

(c) Affirming the order denying access by Mr Haydon to that material.

(i) seeking review of the learned Special Magistrate's decision to refuse an adjournment; and

3. Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1 per Gibbs ACJ at 39. The process of distinguishing between the two classes has been described as "rough but accepted": see Burmah Oil Co Ltd v Bank of England [1979] UKHL 4; [1980] AC 1090 per Lord Wilberforce at 1111 and see Commonwealth v Northern Land Council and Anor [1993] HCA 24; (1993) 176 CLR 604 per Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ at 616.

4. Zarrow and Ors v Australian Securities Commission [1992] FCA 233; (1992) 36 FCR 40 per Lockhart J at 45 citing Sankey v Whitlam (supra) per Gibbs ACJ at 39. See also Sankey v Whitlam (supra) per Stephen J at 57. As to cabinet documents, see Adelaide Brighton Cement v South Australia [1999] SASC 379; (1999) 75 SASR 209 (Debelle J).

6. Sankey v Whitlam (supra) per Gibbs ACJ at 43.

7. R v Hardy (1794) 24 State Tr 199 at 808.

8. (1985) 3 NSWLR 230 at 246:

"The protection of the identity of informers is the result of the immunity from disclosure granted to communications made in the public interest. The protection is no longer regarded as the consequence of an independent rule or privilege but is recognised as a particular manifestation of the doctrine of public interest immunity",

citing D v National Society for the Prevention of Cruelty to Children [1977] UKHL 1; [1978] AC 171 per Lord Simon at 218, 222-230, 232. The learned author of Law of Privilege (McNicol) (The Law Book Co Ltd 1992) states (10):

"Obviously ... the continued existence of the informer privilege is essential for the criminal law. Nonetheless, many of the wider rationales supporting the privilege (such as the protection of the public and the detection of crime) are co-extensive with the rationales supporting the operation of the public interest immunity doctrine, and here the informer privilege will be effectively subsumed under the doctrine of public interest immunity."

9. See R v Robertson and Anor ex parte McCaulay (1983) 21 NTR 11 per O'Leary J at 20-21 citing Tipene v Apperley [1978] 1 NZLR 761 at 768.

10. Young v Quin and Ors [1985] FCA 18; (1985) 4 FCR 483 per Bowen CJ at 485[1985] FCA 18; , 59 ALR 225 at 227, and see Sankey v Whitlam (supra) per Gibbs ACJ at 38 and 44.

11. Sankey v Whitlam (supra) per Stephen J at 58:

"What are now equally well established are the respective roles of the court and of those, usually the Crown, who assert Crown privilege. A claimed Crown privilege has no automatic operation; it always remains the function of the court to determine upon that claim."

See also Conway v Rimmer [1968] UKHL 2; [1968] AC 910 per Lord Morris at 954.

12. [1984] HCA 85; (1984) 154 CLR 404 at 412.

13. See also Conway v Rimmer [1968] UKHL 2; [1968] AC 910 per Lord Reid at 940.

14. For example, even a claim that disclosure would be detrimental to national security will not be conclusive: Attorney-General (Victoria) v Heinemann Publishers (Aust) Pty Ltd (1987) 75 ALR 353. See generally Sankey v Whitlam (supra) per Stephen J at 29.

15. Australian National Airlines Commission v Commonwealth [1975] HCA 33; (1975) 132 CLR 582; Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1 per Gibbs ACJ at 46; Koowarta v Bjelke-Petersen (1988) 92 FLR 104; Conway v Rimmer [1968] UKHL 2; [1968] AC 910 at 983. It is not necessary to discuss the particular circumstances when it might be thought proper to inspect, which is a topic upon which authorities give expression to somewhat differing judicial views.

16. See Sankey v Whitlam (supra) at 42-43 and Alfred Crompton Amusement Machines v Customs and Excise Commissioners [1974] AC 405 at 433.

17. Cain and Ors v Glass and Ors (No 2) (1985) 3 NSWLR 230.

18. (1985) 39 SASR 203.

19. Goldsmith v Newman and Anor (1992) 59 SASR 404 per King CJ at 409.

21. See s 3(1) and see Carter v Hayes (1994) 61 SASR 451 per King CJ at 453 and see Hunt and Anor v Russell and Anor (1995) 63 SASR 402.

22. Public Service Association (SA) v Federated Clerks' Union and Anor [1991] HCA 33; (1991) 173 CLR 132 per Dawson and Gaudron JJ at 160.

24. (1992) 9 WAR 82. See also Ex parte Minister for Corrective Services (1993) 9 WAR 534 per Malcolm CJ at 540.

26. Goldsmith v Newman (1992) 59 SASR 404 per King CJ at 412; R v Kelly (1981) 28 SASR 271 per King CJ at 274; Storer v Murphy and Anor (No 1) (1991) 104 FLR 303, R v Grieve ex parte Ellis (1978) 19 SASR 437 per Hogarth ACJ, Bright and King JJ at 441, S v Metanomski (1993) 65 A Crim R 352 per King CJ at 353.

27. See Sankey v Whitlam 142 CLR per Gibbs ACJ at 22 and see Fuller and Anor v Field and Anor [1995] SASC 5346; (1995) 66 SASR 1 per Matheson J at 20.

28. [1890] 25 QBD 494 at 498.

29. 15 M & W 169.

30. 24 St Tr 199.

32. Citing R v Hardy 24 ST 811; AG v Bryant 15 M & W 169; R v Richardson [1863] EngR 71; 3 F & F 693. [Gr Ev i.s 250; US v Moses 4 Wash C C 726; State v Soper 16 Me 293; Worthington v Scribner 109 Mass.

33. As Priestley J remarked in Cain v Glass (No 2) (1985) 3 NSWLR 242:

"The courts have always recognised the great importance of not forcing public disclosure by police of their sources of information."

34. [1995] VicRp 5; [1995] 1 VR 84.

38. [1994] 1 WLR 746 per Lord Taylor of Gosforth CJ, Auld and Mitchell JJ at 752.

[3] Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1 per Gibbs ACJ at 39. The process of distinguishing between the two classes has been described as "rough but accepted": see Burmah Oil Co Ltd v Bank of England [1979] UKHL 4; [1980] AC 1090 per Lord Wilberforce at 1111 and see Commonwealth v Northern Land Council and Anor [1993] HCA 24; (1993) 176 CLR 604 per Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ at 616.

[4] Zarrow and Ors v Australian Securities Commission [1992] FCA 233; (1992) 36 FCR 40 per Lockhart J at 45 citing Sankey v Whitlam (supra) per Gibbs ACJ at 39. See also Sankey v Whitlam (supra) per Stephen J at 57. As to cabinet documents, see Adelaide Brighton Cement v South Australia [1999] SASC 379; (1999) 75 SASR 209 (Debelle J).

[5] Sankey v Whitlam (supra) per Gibbs ACJ at 43.

[6] R v Hardy (1794) 24 State Tr 199 at 808.

[7] (1985) 3 NSWLR 230 at 246:

"The protection of the identity of informers is the result of the immunity from disclosure granted to communications made in the public interest. The protection is no longer regarded as the consequence of an independent rule or privilege but is recognised as a particular manifestation of the doctrine of public interest immunity",

citing D v National Society for the Prevention of Cruelty to Children [1977] UKHL 1; [1978] AC 171 per Lord Simon at 218, 222-230, 232. The learned author of Law of Privilege (McNicol) (The Law Book Co Ltd 1992) states (10):

"Obviously ... the continued existence of the informer privilege is essential for the criminal law. Nonetheless, many of the wider rationales supporting the privilege (such as the protection of the public and the detection of crime) are co-extensive with the rationales supporting the operation of the public interest immunity doctrine, and here the informer privilege will be effectively subsumed under the doctrine of public interest immunity."

[8] See R v Robertson and Anor ex parte McCaulay (1983) 21 NTR 11 per O'Leary J at 20-21 citing Tipene v Apperley [1978] 1 NZLR 761 at 768.

[9] Young v Quin and Ors [1985] FCA 18; (1985) 4 FCR 483 per Bowen CJ at 485[1985] FCA 18; , 59 ALR 225 at 227, and see Sankey v Whitlam (supra) per Gibbs ACJ at 38 and 44.

[10] Sankey v Whitlam (supra) per Stephen J at 58:

"What are now equally well established are the respective roles of the court and of those, usually the Crown, who assert Crown privilege. A claimed Crown privilege has no automatic operation; it always remains the function of the court to determine upon that claim."

See also Conway v Rimmer [1968] UKHL 2; [1968] AC 910 per Lord Morris at 954.

[11] [1984] HCA 85; (1984) 154 CLR 404 at 412.

[12] See also Conway v Rimmer [1968] UKHL 2; [1968] AC 910 per Lord Reid at 940.

[13] For example, even a claim that disclosure would be detrimental to national security will not be conclusive: Attorney-General (Victoria) v Heinemann Publishers (Aust) Pty Ltd (1987) 75 ALR 353. See generally Sankey v Whitlam (supra) per Stephen J at 29.

[14] Australian National Airlines Commission v Commonwealth [1975] HCA 33; (1975) 132 CLR 582; Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1 per Gibbs ACJ at 46; Koowarta v Bjelke-Petersen (1988) 92 FLR 104; Conway v Rimmer [1968] UKHL 2; [1968] AC 910 at 983. It is not necessary to discuss the particular circumstances when it might be thought proper to inspect, which is a topic upon which authorities give expression to somewhat differing judicial views.

[15] See Sankey v Whitlam (supra) at 42-43 and Alfred Crompton Amusement Machines v Customs and Excise Commissioners [1974] AC 405 at 433.

[16] Cain and Ors v Glass and Ors (No 2) (1985) 3 NSWLR 230.

[17] (1985) 39 SASR 203.

[18] Goldsmith v Newman and Anor (1992) 59 SASR 404 per King CJ at 409.

[20] See s 3(1) and see Carter v Hayes (1994) 61 SASR 451 per King CJ at 453 and see Hunt and Anor v Russell and Anor (1995) 63 SASR 402.

[21] Public Service Association (SA) v Federated Clerks' Union and Anor [1991] HCA 33; (1991) 173 CLR 132 per Dawson and Gaudron JJ at 160.

[22] Ibid per Brennan J (as he then was) at 142.

[23] (1992) 9 WAR 82. See also Ex parte Minister for Corrective Services (1993) 9 WAR 534 per Malcolm CJ at 540.

[25] Goldsmith v Newman (1992) 59 SASR 404 per King CJ at 412; R v Kelly (1981) 28 SASR 271 per King CJ at 274; Storer v Murphy and Anor (No 1) (1991) 104 FLR 303, R v Grieve ex parte Ellis (1978) 19 SASR 437 per Hogarth ACJ, Bright and King JJ at 441, S v Metanomski (1993) 65 A Crim R 352 per King CJ at 353.

[26] See Sankey v Whitlam 142 CLR per Gibbs ACJ at 22 and see Fuller and Anor v Field and Anor [1995] SASC 5346; (1995) 66 SASR 1 per Matheson J at 20.

[27] [1890] 25 QBD 494 at 498.

[28] 15 M & W 169.

[29] 24 St Tr 199.

[30] (1885) 4th edition, Article 113 at 200.

[31] Citing R v Hardy 24 ST 811; AG v Bryant 15 M & W 169; R v Richardson [1863] EngR 71; 3 F & F 693. [Gr Ev i.s 250; US v Moses 4 Wash C C 726; State v Soper 16 Me 293; Worthington v Scribner 109 Mass.

[32] As Priestley J remarked in Cain v Glass (No 2) (1985) 3 NSWLR 242:

"The courts have always recognised the great importance of not forcing public disclosure by police of their sources of information."

[33] [1995] VicRp 5; [1995] 1 VR 84.

[37] [1994] 1 WLR 746 per Lord Taylor of Gosforth CJ, Auld and Mitchell JJ at 752.