Hamdan v Callanan; Younan v Callanan [2013] QCA 104

SUPREME COURT OF QUEENSLAND

CITATION: Hamdan v Callanan; Younan v Callanan [2013] QCA 104

PARTIES: HAYSAM HAMDAN (first appellant) PAUL YOUNAN (second appellant) v JOHN DAVID CALLANAN (respondent)

FILE NO/S: Appeal No 8111 of 2012 Appeal No 8112 of 2012 SC No 10192 of 2011 SC No 10190 of 2011

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeal

ORIGINATING COURT: Supreme Court at Brisbane

DELIVERED ON: 10 May 2013

DELIVERED AT: Brisbane

HEARING DATE: 18 March 2013

JUDGES: Muir and Fraser JJA and Douglas J Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS: The appeals of Hamdan and Younan are dismissed.The appellants are to pay the respondent’s costs of and incidental to the appeal.

CATCHWORDS: PROCEDURE – DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION OF DOCUMENTS – PRODUCTION AND INSPECTION – GROUNDS FOR RESISTING PRODUCTION – PUBLIC INTEREST IMMUNITY – GENERALLY – where the appellants challenge the finding that certain documents were privileged from disclosure on the basis of public interest immunity – whether the primary judge erred in not properly identifying and weighing the strength of the public interest in disclosure of the documents or specific parts of them – whether any unfairness to the applicants is outweighed by the public interest in non-disclosure of the documents – whether redaction of parts of the documents would sufficiently address the public interest in protecting the identities of informers / Crime and Misconduct Act 2001 (Qld), s 82 / Hammond v The Commonwealth (1982) 152 CLR 188; [1982] HCA 42, considered / National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296; [1984] HCA 29, applied / Sankey v Whitlam (1978) 142 CLR 1; [1978] HCA 43, considered / Spargos Mining NL v Standard Chartered Aust Ltd (No 1) (1989) 1 ACSR 311, considered

COUNSEL: A Boe with T Pincus for the appellants / M J Burns SC, with D Coughlin, for the respondent

SOLICITORS: Nyman Gibson Stewart for the appellants / Official Solicitor to the Crime and Misconduct Commission for the respondent

MUIR JA: I agree that the appeal should be dismissed with costs for the reasons given by Douglas J.

FRASER JA: I have had the advantage of reading the reasons for judgment of Douglas J. I agree with those reasons and with the orders proposed by his Honour.

DOUGLAS J: The appellants were issued with attendance notices requiring them to attend hearings of the Crime and Misconduct Commission (“the CMC”) into an alleged murder at Burleigh Heads in 2009 and to give evidence relating to their knowledge of the circumstances surrounding the death. They were regarded as suspects in the commission of the crime but no charges have yet been laid against them or any other person. It happened after an incident of “road rage” where the deceased was shot through the window of the car he was driving by a pistol used by a passenger in another vehicle which stopped next to the deceased’s vehicle.

They have challenged the decision of the second respondent, Mr Callanan, as a delegate of the chairperson of the CMC, to issue the attendance notices by seeking statutory orders of review. As a preliminary part of that challenge they asked for disclosure of three documents claimed by the respondents to be privileged from disclosure on the basis of public interest immunity. The relevant documents were described as applications in support of a notice to attend a hearing pursuant to s 82 of the Crime and Misconduct Act 2001 (Qld). The learned primary judge upheld the claim to public interest immunity. In my view her Honour’s decision was correct.

Background

Mr Callanan described the material considered by the Crime Reference Committee (“the CRC”), established under s 278 of the Act, when it made the decision to refer the alleged crime to the CMC for investigation in these terms in paragraph 21 of an affidavit filed in an earlier application in 2009:¹

“(a)At approximately 10.25pm on 26 January 2009, the deceased sustained a single fatal gun shot wound to his stomach whilst standing at the driver’s side of his 2001 Holden Rodeo Utility Qld Rego 508GNP on the Gold Coast Highway, Burleigh Heads, approximately 30 metres south of the intersection with 5th Avenue.

(b)The deceased was the driver of this vehicle and there were two male passengers. Witness statements have been obtained from the passengers which indicate that just prior to the fatal shooting, the deceased and the two passengers were involved in a ‘road rage’ incident involving a second vehicle, described as a small red 4 door sedan or hatch.

(c)That vehicle contained 3 male persons described as being of ‘Lebanese’ extraction. No vehicle registration was obtained by witnesses at the scene. Investigations indicate that the deceased‘s vehicle has been ‘cut off’ by the suspects’ vehicle whilst travelling south on the Gold Coast Highway at Miami. The occupants of each vehicle have then become involved in a verbal exchange whilst seated in their respective moving vehicles. Expletive hand gestures have also been exchanged. The vehicles have continued south on the Gold Coast Highway when the deceased‘s vehicle pulled over to the left hand side of the road, approximately 30 metres south of the intersection with 5th Avenue at Burleigh Heads. The suspects’ vehicle has pulled over on the same side of the road approximately 15 metres behind.

(d)One passenger alighted from the deceased‘s vehicle and approached the suspects’ vehicle. That passenger stated that the rear passenger door was opened as he approached. He walked to this open door and observed a ‘Lebanese’ male described as mid 20’s, short greased black hair, olive complexion, and muscular build wearing a tight white t-shirt. This male person was holding what appeared to be a black handgun, possibly a semi or automatic firearm. This witness also observed ‘Lebanese’ males in the front passenger and driver seats.

(e)The witness did not enter this suspects’ vehicle. The suspects’ vehicle was observed to drive to the right hand side of the deceased‘s vehicle. The second passenger was standing next to the open rear left hand passenger side door at this stage and observed the suspects’ vehicle stop next to the deceased’s vehicle. He observed the ‘Lebanese’ male seated in the rear passenger seat place a black handgun out through the three quarter open rear passenger window. The male person rested his wrists on the window and fired two consecutive shots at the deceased. The suspects’ vehicle then continued driving south down the Gold Coast Highway.”

In paragraph 22 of the same affidavit he also described other investigations carried out by the Queensland Police Service which included references to criminal intelligence provided by the New South Wales Police Force.

Evidence was taken from three witnesses at CMC hearings in 2009 after an unsuccessful challenge to the attendance notices issued at that time but Mr Younan was then in custody in New South Wales. He was not examined. On 11 October 2011 another attendance notice was issued to Mr Younan, and, for the first time, an attendance notice was issued to Mr Hamdan. The decisions to issue those attendance notices are the subject of the relevant challenges in these proceedings.

Mr Calllanan swore three affidavits in which he described the documents sought to be disclosed in these terms:²

“17.The written application [relating to the appellant Hamdan] I had regard to largely rehearsed the statement as to the circumstances of the offence referred to at paragraph 21 of my previous affidavit (Exhibit JCA-03) and the body of information referred to as criminal intelligence referred to at paragraph 22 of my previous affidavit (Exhibit JDC-03). It also made reference to the public interest issues to which the CRC had regard and contained material relating to the relevance of the proposed witness. In particular, the fact that following the murder the Applicant left Australia for Lebanon and has not been able to be questioned to date with respect to the matter.

…

The written application [relating to the appellant Younan] I had regard to largely rehearsed the statement as to the circumstances of the offence referred to above and the body of information referred to as criminal intelligence above. It also made reference to the public interest issues to which the CRC had regard and contained material relating to the relevance of the proposed witness which summarised, but did not materially alter, the information provided in the material considered by the CRC in relation to the circumstances of the First Applicant and his relevance to the investigation.

…

In addition, the written application [relating to the appellant Younan] I had regard to in making my decision provided an update of the matter since hearings were held at the Commission in 2009. That is, following the finalisation of the previous (judicial review) proceedings, the Commission hearings which had been adjourned due to those proceedings were held in September and October 2009, with the exception of the Applicant’s hearing. This was because the Applicant was at that time in custody in New South Wales and it was considered impracticable for him to attend a Commission hearing. As at 11 October 2011, the Applicant was no longer in custody and it was desired to proceed with his examination. Due to the passage of time, it was considered appropriate to issue a fresh attendance notice.”

Those documents were examined privately by the learned primary judge who said of them that:³

“[37]… They reveal information about the incident and the conduct of persons after the incident beyond that in paragraph 21 of the second respondent’s affidavit in the 2009 proceeding. They reveal the identities of at least some of the police investigators, and contain information which might lead to the identification of informers. They reveal investigation techniques and the exchange of criminal intelligence between interstate and Queensland agencies.”

The appellants argue that her Honour erred in not properly identifying and weighing the strength of the public interest in disclosure of the documents to the appellants, in upholding the claim for public interest immunity without due regard to whether damage would be likely to be caused to the public interest by disclosure of the documents or specific parts of them in the circumstances of this particular case and in not assessing the capacity for redaction of parts of the documents to sufficiently address the public interest in protecting the identities of informers. I shall deal with each of those three submissions shortly.

The appellants concede that information received in the course of an ongoing criminal investigation may understandably attract immunity from production but submit that the immunity is not absolute. The respondents did not challenge the legitimacy of the appellants’ forensic purpose in seeking access to the documents but argued that her Honour’s decision in refusing access to them was correct and also that the documents formed part of a class of documents for which immunity could be claimed.

Identification and weighing of the public interest

The focus of the appellants’ argument was that her Honour did not sufficiently identify and weigh the public interest in disclosure with particular reference to the effect of s 57 of the Act which requires the Commission to “act independently, impartially and fairly having regard to the purposes of this Act and the importance of protecting the public interest.”

Mr Boe for the appellants developed that submission by:

referring to the fact that two and a half years had passed since the matter had been referred to the CMC;

raising as an issue whether there had been a proper assessment of all of the evidence obtained since the initial referral, including a determination of the available admissible evidence already gathered against any suspect;

referring to the fact that both appellants were suspects in respect of the offence of murder being investigated;

querying whether the matter should be referred back to the CRC for a decision to end the particular investigation under s 29(2) of the Act;

asking whether the issuing of attendance notices in 2011 would further the objects of combating and reducing incidents of major crime;

referring to the impact on the appellants of the decisions to issue attendance notices after two and a half years delay from the reference to the CMC; and

referring to the impact upon the appellants of the decisions including the intrusions on their liberties and privileges where the Act compels attendance and the answering of questions asked, abrogates the common law privilege against self-incrimination and, it was submitted, avoided the effect of the decision in Hammond v The Commonwealth.⁴

He argued that her Honour dealt with some only of those issues in her reasons when she acknowledged that the public interest in respect of the rights of persons in the appellants’ position was a relevant consideration which she characterised as a “right to be treated fairly as suspects and citizens.”⁵ Her Honour also considered that, because of the legislature’s intention that persons such as the appellants be deprived of their right to remain silent, and because there was no time frame set under the Act for attendance notices to be issued, there was no relevant unfairness shown when the delays complained of were taken into account. Her Honour’s reasons balanced those arguments against the public interest in non-disclosure of the documents to achieve the result that the claim to public interest immunity should be maintained.⁶

It was also submitted that her Honour did not take into account the fact that the appellants were suspects in reaching that conclusion. But, as the respondent submitted, it was perfectly plain in her Honour’s analysis of the background facts to this application and the submissions of counsel that the appellants were being treated as suspects, and that this was something her Honour took into account.⁷ The respondent’s submission that it was disingenuous to suggest that her Honour did not take into account the appellants’ position as suspects was accurate.

The appellants’ argument that the fact that they were suspects in but not charged with a very serious criminal offence was a factor weighing in favour of disclosure does not strike me as particularly persuasive. The contrary approach is more consistent with the authorities. The submissions regarding why disclosure was contrary to the public interest made for the respondent below were summarised by her Honour as follows:⁸

“[28]These were the eight reasons advanced by Counsel for the second respondent:

(a)it would prejudice the further investigation of this crime and other major crime;

(b)it would irreparably compromise the proposed strategy of obtaining truthful accounts of the applicants’ knowledge of the offence by questioning them in closed coercive hearings;

(c)it would alert the applicants to facts and circumstances disclosed by the investigation to date, and enable them to tailor their answers to questions accordingly;

(d)it would involve disclosure of criminal intelligence provided on a confidential basis by the New South Wales Police Force to the Queensland Police Service (‘QPS’), and by the QPS to the first respondent and the CMC, with likely adverse effect on the free flow of information between the NSW Police Force and Queensland law enforcement agencies in respect of this and future investigations;

(e)it would likely discourage the existing practice whereby the QPS provides the first respondent with highly confidential and otherwise protected material in support of requests by the Commissioner of Police for the referral of serious incidents of major crime;

(f)concerns about the risk of disclosure being required in judicial review proceedings may lead to limitations on the material provided to the first respondent for its consideration in deciding whether to refer a major crime to the CMC for investigation;

(g)concerns about the disclosure of records of meetings of the first respondent may adversely affect candour in its deliberations;

(h)this is not a case where much of the material is already known by probable witnesses.”

Her Honour concluded that it would be contrary to the public interest to compel disclosure of documents relating to the ongoing investigation of a major crime, such as this alleged murder, because of the risk of seriously hindering that investigation and prejudicing criminal proceedings at [42] of her decision in reliance on decisions such as National Companies and Securities Commission v News Corporation Ltd⁹ and Spargos Mining NL v Standard Chartered Aust Ltd (No 1).¹⁰ The passage in the joint judgment of Mason, Wilson and Dawson JJ in National Companies and Securities Commission v News Corporation Ltd, to which her Honour referred, is particularly compelling:

“It is of the very nature of an investigation that the investigator proceeds to gather relevant information from as wide a range of sources as possible without the suspect looking over his shoulder all the time to see how the inquiry is going. For an investigator to disclose his hand prematurely will not only alert the suspect to the progress of the investigation but may well close off other sources of inquiry. Of course, there comes a time in the usual run of cases when the investigator will seek explanations from the suspect himself and for that purpose will disclose the information that appears to require some comment.”

Her Honour also noted the “valid distinction between disclosure at the investigation stage and disclosure in the course of a prosecution” at [41], discussed the issues related to the desirability of not stifling cooperation between different law enforcement agencies in Queensland and interstate and of not disclosing the identity of informers at [43]-[46] and concluded as part of the balancing exercise that she engaged in:¹¹

“[47]The countervailing public interest consideration on which counsel for the applicants relied is the applicants’ right to be treated fairly as suspects and as citizens.

[48]By s 57 of the Crime and Misconduct Act, the CMC is required always to act independently, impartially and fairly having regard to the purposes of the legislation (which include combating and reducing the incidence of major crime) and the importance of protecting the public interest. That obligation necessarily applied to the decisions to issue Attendance Notices. For the purposes of these applications, I accept that protection of the public interest within the meaning of s 57 includes protection of the public interest in respect for the rights of individuals in the position of the applicants, as well as protection of the public interest in the broader sense.

[49]As Applegarth J said in Accused A v Callanan, the liberties of persons required to attend a crime investigation hearing are affected by the compulsion to attend and answer questions; their privilege against self-incrimination is abrogated; and the compulsory examination may confer a number of forensic advantages upon the prosecution in the trial of an accused. But it was clearly the Legislative’s (sic) intention that this should be so, and in my view this does not amount to ‘unfairness’ in the relevant sense.

[50]Counsel for the applicants pointed to the delays in examining Younan, and in the decisions to issue the second notice to him and the notice to Hamdan. Even if the explanations proffered did not fully account for all of the delays, it is pertinent that the legislation places no time limitation upon the exercise of the CMC’s powers.

[51]Any unfairness to the applicants is, in my view, outweighed by the public interest in non-disclosure of the documents.”

Her Honour’s approach to the balancing exercise required was, in my view, entirely appropriate.

Was there a real likelihood of damage to the public interest?

In respect of the primary judge’s findings that:¹²

there was a prospect of the appellants’ tailoring their evidence in response to the contents of the documents;

investigative techniques were revealed by the documents as were information exchanges between law enforcement agencies; and

the documents contained information which might lead to the identification of informers;

the appellant’s submissions were that those considerations were not sufficient for her Honour to reach the conclusion that the claim to public interest immunity should be upheld. The argument was that her Honour had not considered whether there was any quantifiable risk of likely damage that would occur in this case.

The prospect that the appellants would tailor their evidence was described as illusory because they had had significant time by then in which to do that. That is not a compelling argument. It is much easier for witnesses to tailor their evidence when possessed of the detail of the case against them before they are obliged to make any statement. There is also the risk identified in National Companies and Securities Commission v News Corporation Ltd that premature disclosure may close off other sources of inquiry.

It was also submitted that, as any accounts the appellants give before the CMC may not be used against them in any proceeding, it is questionable that this could interfere with the course of justice in the event that either of them were charged. That ignores the desirability of using these procedures in an attempt to identify as accurately as possible how the death being investigated occurred by obtaining statements from all potential witnesses.

Her Honour’s view that the documents revealed investigative techniques was criticised on the basis that the publication of well-known and obvious investigative techniques would have no serious hindering effect on investigations. There is no evidence to justify the assertion that the investigative techniques said to be contained in these documents are either well-known or obvious. The documents were, however, examined by her Honour and she reached the conclusion that they did contain information revealing investigative techniques as well as the exchange of criminal intelligence between interstate and Queensland agencies.

As the respondent submitted, in the ordinary course of serious criminal investigations, law enforcement agencies may exchange a significant degree of highly confidential information. Reliance was placed by both parties on a passage in Sankey v Whitlam¹³ where Gibbs ACJ referred to the views of some judges that the argument that candour in the exchange of information between executive agencies was a reason for permitting a class claim for public interest immunity in respect of them may be “unconvincing”. Nevertheless, his Honour went on to conclude that the object of the protection was to ensure the proper working of government and that it was inherent in the nature of things that government at a high level cannot function without some degree of secrecy, so that the public interest therefore required that some protection be afforded by the law to documents of that kind. Although his Honour concluded that it did not follow that all such documents should be absolutely protected from disclosure irrespective of the subject matter with which they deal, it is still a relevant consideration in a case such as this.

The respondents relied upon such considerations as a reason for arguing that these documents came into a class which should attract public interest immunity. It seems to me, however, that having regard to the factual findings her Honour made in her examination of the documents and recorded at [37] of her reasons, that it is unnecessary to determine that these documents constitute such a class in themselves. Her Honour having conducted the balancing exercise required to determine whether the particular documents should be disclosed in a manner which seems to me to be appropriate, it becomes unnecessary to determine whether the documents as a class should also attract public interest immunity. Undoubtedly, however, they bear many features required of a valid class claim.

In my view, at the stage that these matters are at, where investigations are still on foot, her Honour’s conclusion that the prospect of the appellants’ tailoring their evidence in response to the contents of the documents was not illusory was correct. The same applies to her conclusion that cooperation between different law enforcement agencies should not be stifled or discouraged by the prospect of confidential communications during the course of an investigation being disclosed.

The appellants’ criticism that her Honour failed to consider the possibility of redacting information that might identify informers in considering whether there was the potential for harm to the public interest can be conveniently dealt with in my consideration of their third argument.

Failure to consider redaction

Her Honour did not particularly refer to the possibility of redacting information in her reasons, but it was clearly raised in the submissions of the appellants before her, and by her with counsel in the oral submissions.¹⁴ That issue was dealt with orally just before she adjourned briefly to review the documents. The respondent’s submission before her Honour was that the entirety of the document detailed the nature of the investigation and was so closely tied to protected information that redactions would render it meaningless.¹⁵ It seems appropriate to infer that her Honour was persuaded of the lack of utility in their being redacted, especially in the context of her other findings, made at [37] of her reasons, and to which I referred earlier.

Conclusion

I am not convinced that, on a proper analysis of the facts of the case and the nature of the claim to public interest immunity raised, that the possibility of redacting information relevant to the identity of informers overcomes the other legitimate considerations justifying the claim to public interest immunity at this stage. In particular, at the stage where the crime is still being investigated, it seems to me that her Honour’s conclusion that it would be contrary to the public interest to compel disclosure of these documents, inspected by her and relating to the ongoing investigation, is appropriate because of the risk of seriously hindering that investigation and prejudicing criminal proceedings. The criticism by the appellants of the balancing exercise engaged in by her Honour does not persuade me that she approached the task erroneously or that her decision should be reversed.

Order

The appeal should, therefore, be dismissed and the appellants should pay the respondent’s costs of and incidental to the appeal.

Footnotes

1. See the affidavit of Mr Callanan in Younan’s application sworn 9 June 2009 paragraph 21 at AR93-94. ↩

2. See the affidavit of Mr Callanan in Hamdan’s application sworn 17 November 2011 at AR 76 paragraph 17; his affidavit sworn 9 June 2009 in Younan’s application at AR 177 paragraph 70 and his affidavit sworn 17 November 2011 in Younan’s application at AR 148 paragraph 18. ↩

3. Younan v Crime Reference Committee & Anor; Hamdan v Crime Reference Committee & Anor [2012] QSC 225 at [37]. ↩

4. (1982) 152 CLR 188; [1982] HCA 42. ↩

5. See Younan v Crime Reference Committee; Hamdan v Crime Reference Committee [2012] QSC 225 at [47]. ↩

6. See Younan v Crime Reference Committee; Hamdan v Crime Reference Committee [2012] QSC 225 at [48]-[51]. ↩

7. See Younan v Crime Reference Committee; Hamdan v Crime Reference Committee [2012] QSC 225 at [34] and [47]. ↩

8. See Younan v Crime Reference Committee; Hamdan v Crime Reference Committee [2012] QSC 225 at [28]. ↩

9. (1984) 156 CLR 296, 323-324; [1984] HCA 29. ↩

10. (1989) 1 ACSR 311, 312. ↩

11. See Younan v Crime Reference Committee; Hamdan v Crime Reference Committee [2012] QSC 225 at [47]-[51], citations omitted.