R v Al Batat & Ors

The evidence and submissions on the public interest immunity claim

The evidence

1. The Commissioner read an open affidavit of Stuart Smith, an Assistant Commissioner of Police (MFI 12) and an open exhibit to that affidavit (Exhibit VD1). A confidential affidavit and exhibit was also read (Exhibit VD2). These documents were originally tendered or read on an earlier and unrelated application: see R v Al Batat & Ors (No 1) [2020] NSWSC 967.
2. The Commissioner also read an open affidavit of Michael Willing, another Assistant Commissioner of Police (MFI 41). Annexed to Mr Willing's affidavit was a (291 page) bundle of documents that had been produced to the Court, redacted in accordance with the claim for public interest immunity. Mr Willing's confidential affidavit and exhibit was also read (MFI 42). The confidential exhibit (of 279 pages) included the same documents as MFI 41 but instead of being redacted, the relevant (redacted) parts were shaded. This allowed the Court to make a comparison between the original documents and those that had been produced to the Court for the purpose of allowing access to the parties. The shading was colour coded so that green shading indicated those parts of the affidavit that were subject to the public interest immunity claim. The red, yellow and blue redactions need not be mentioned further as Senior Counsel for Mr Al Batat did not press for production of those parts of the documents. The dispute was narrowed to those documents redacted or shaded in green in MFIs 41 and 42.
3. On 18 August 2020, two further bundles of documents - one confidential, one not - were produced to the Court. These bundles, each of 142 pages, were similarly redacted or colour coded with shading to indicate the parts of the documents that were subject to the public interest immunity claim. Correspondence relating to these bundles was marked MFI 48 and 49. The correspondence identified the pages relevant to the claim.
4. On 20 August 2020, two further bundles were produced. These were of 240 pages each and similarly colour coded or redacted. Again, one bundle was produced for the Court and the other reflected the material that was redacted and released to the accused's lawyers. An email dated 20 August 2020 set out the pages containing green redactions or shading, over which the public interest immunity claim was made. On 24 August 2020, Ms Rigg SC identified the pages in relation to which she pressed her call for production (pages 1-3, 10-13, 18, 60-63, 90, 92, 103, 114, 119-124, 126-128, 136, 137, 152, 157-162, 164, 187). [4]
5. How the 382 pages of further material referred to in the last two paragraphs were overlooked in responding to the subpoena originally was not explained. However, counsel for the Commissioner did indicate that all concerned were very sorry. There was some duplication or cross-over between the documents originally produced and those produced on 18 and 20 August 2020.
6. On 24 August 2020, the Commissioner produced a final, mercifully slim, bundle of documents. Ms Rigg did not press the production of any more of these documents than had already been provided to her instructing solicitor informally.

Submissions

1. Counsel for the Commissioner provided written submissions which, helpfully and succinctly, set out the uncontroversial legal principles to be applied.
2. It was of course, difficult for Mr Al Batat to advance any detailed submissions in relation to those parts of the evidence that were "confidential" or "closed". However, Senior Counsel emphasised the importance of Mr Rivers' evidence to the issues to the trial. In determining the application I proceed on the understanding that Mr Rivers' credibility in the eyes of the jury will be of the utmost importance in addressing the central issues in the trial. Information concerning his credibility, including his involvement in criminal activities unrelated to the events of January and February 2017, should be available to the accused except in compelling circumstances.
3. Ms Rigg stressed that some of the authorities concerning the "more onerous test" that applies to a "confidential informer" was not applicable to Mr Rivers because he was not a "confidential informer". [5] While this submission is correct, the material in the closed or confidential affidavits satisfies me that similar considerations apply to Mr Rivers. It is inappropriate to say more than that. The basis of that observation will be obvious to anybody reading the confidential affidavits, especially that of Mr Smith.
4. Ms Rigg stressed the importance of s 130 of the Evidence Act 1995 (NSW) and submitted that it changed the landscape in terms of the balancing exercise that must be undertaken. She submitted correctly that the seriousness of the charges faced by the accused along with the central importance of Mr Rivers' credibility "would weigh very heavily in favour of access being allowed to the accused to information of" [6] the kind she identified.
5. Ms Rigg categorised the type of material that may be of significance in cross-examination and that she anticipated would be contained in the material produced to the Court and subject to redaction. This included (i) material where any benefit to Mr Rivers was discussed with police, including assistance with relocation, (ii) attempts by the witness to obtain sympathy, including by expressing concerns about his safety, (iii) information that may explain why the charges against Mr Rivers were discontinued or reduced in seriousness. Ms Rigg also expressed interest in Mr Rivers' employment, whether legitimate or not legitimate. An examination of parts of the information produced on subpoena explains Senior Counsel's legitimate interest in such material.
6. Mr Bhalla of counsel appeared for the Commissioner. Most of his submissions were made in open court and in the presence of the parties. For obvious reasons, he was required to advance his submissions in a circumspect way. On 11 August 2020, Mr Bhalla made submissions in closed court and in the absence of the parties and their lawyers (including the Prosecution). This somewhat ungratifying procedure is well established and no party raised objection. The procedure allows the claim and evidence to be ventilated openly and without defeating the immunity that is the subject of the dispute. It allows the Judge deciding the issue to ask direct questions about the real issues and concerns of the party seeking to advance the claim for privilege. Following an initial review of some of the material I invited Mr Bhalla to address some particular concerns and this was done in closed court, and in the absence of the parties, on 24 August 2020. [7]

The legal principles to be applied

1. Public interest immunity is a doctrine of substantive law and is a fundamental immunity, not just a rule of evidence. Section 130 of the Evidence Act "closely reflects the common law position": Eastman v R (1997) 76 FCR 9 at 63. Section 130 provides: (1) If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence. (2) The court may give such a direction either on its own initiative or on the application of any person (whether or not the person is a party). (3) In deciding whether to give such a direction, the court may inform itself in any way it thinks fit. (4) Without limiting the circumstances in which information or a document may be taken for the purposes of subsection (1) to relate to matters of state, the information or document is taken for the purposes of that subsection to relate to matters of state if adducing it as evidence would-- (a) prejudice the security, defence or international relations of Australia, or (b) damage relations between the Commonwealth and a State or between 2 or more States, or (c) prejudice the prevention, investigation or prosecution of an offence, or (d) prejudice the prevention or investigation of, or the conduct of proceedings for recovery of civil penalties brought with respect to, other contraventions of the law, or (e) disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State, or (f) prejudice the proper functioning of the government of the Commonwealth or a State. (5) Without limiting the matters that the court may take into account for the purposes of subsection (1), it is to take into account the following matters-- (a) the importance of the information or the document in the proceeding, (b) if the proceeding is a criminal proceeding--whether the party seeking to adduce evidence of the information or document is a defendant or the prosecutor, (c) the nature of the offence, cause of action or defence to which the information or document relates, and the nature of the subject matter of the proceeding, (d) the likely effect of adducing evidence of the information or document, and the means available to limit its publication, (e) whether the substance of the information or document has already been published, (f) if the proceeding is a criminal proceeding and the party seeking to adduce evidence of the information or document is a defendant--whether the direction is to be made subject to the condition that the prosecution be stayed. (6) A reference in this section to a State includes a reference to a Territory.
2. As to the applicability of s 130 to preliminary proceedings, see ss 131A and 133 of the Evidence Act.
3. In Attorney-General v Stuart (1994) 34 NSWLR 667, Hunt CJ at CL said at 676 (citations mostly omitted): "In order to determine whether there is such a legitimate forensic purpose, it is not appropriate for the judge to inspect the documents simply because of a bare unsupported assertion that upon such an inspection something may be found which is helpful to the accused: Alister v The Queen. In Alister's case, the documents were eventually inspected by the High Court because - applying the criterion suggested in Air Canada v Secretary of State for Trade - the majority were satisfied that there was some concrete ground for a belief that the documents did contain information which would materially assist the accused, or (as Gibbs CJ put it) it was on the cards that they would do so: see also R v Saleam. It is necessary for a party seeking to overcome a claim of public interest immunity to demonstrate his legitimate forensic purpose for seeing the documents before the judge proceeds to the balancing process: Burmah Oil Co Ltd v Governor and Company of the Bank of England; Alister v The Queen. Which public interest will predominate in the particular case must be determined by reference to the circumstances of that case: Sankey v Whitlam; Alister v The Queen. There can be no statement of general application as to which should predominate in any particular case."
4. In Sankey v Whitlam (1978) 142 CLR 1; [1978] HCA 43, Gibbs CJ said at 38-39: "It is in all cases the duty of the court, and not the privilege of the executive government, to decide whether a document will be produced or may be withheld. The court must decide which aspect of the public interest predominates, or in other words whether the public interest which requires that the document should not be produced outweighs the public interest that a court of justice in performing its functions should not be denied access to relevant evidence. In some cases, therefore, the court must weigh the one competing aspect of the public interest against the other, and decide where the balance lies."
5. In Alister v The Queen (1984) 154 CLR 404 at 412; [1984] HCA 85 the High Court explained the procedure and relevant considerations as follows: "Sankey v. Whitlam establishes that when one party to litigation seeks the 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 - i.e., 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 or are likely to be documents which contain material evidence."
6. While the categories of public interest that may support a claim of public interest immunity are not closed, the present case falls generally into two recognised categories of public interest immunity. The first is the protection of information that would divulge police methodology. The second is the protection of the identity and safety of informant witnesses. The first category is not particularly relevant to the present application. While some of the material redacted is calculated to protect such methodology, there would be no particular forensic purpose in the accused having access to information disclosing such methodology in this case. There is nothing in the material of that nature that would assist the accused in the conduct of the trial or in the approach taken in the cross-examination of Mr Rivers.
7. It is the second category - the protection of informers - that is of real significance in this case. Putting aside the issue of "confidential informers" and the more onerous test that may apply in such cases, the authorities support an approach that provides "informants" with strong protection: see, for example, Cain v Glass (No 2) (1985) 3 NSWLR 230 at 247-248. While McHugh JA (as his Honour then was) stressed the "absolute" nature of the rule in civil cases, his Honour allowed for more flexibility in cases where the party seeking access was charged with a serious criminal offence.

Resolution of the claim and inspection of material

1. I have inspected all of the material produced on subpoena in redacted and unredacted form. I have considered the affidavit evidence, including the confidential affidavit of Mr Smith. I have considered the whole of the evidence that was produced on the voir dire over the previous five weeks. This includes the statements of Mr Rivers and the prosecution case statement.
2. It is to be borne in mind that Mr Rivers' identity is known to the parties in this trial and his status as an "informer" is also known. However, his current whereabouts are not known and nor are any security arrangements that may have been put in place during the period since he offered to assist the police.

There is a clear and legitimate claim for public interest immunity

1. There is no doubt that the material in the confidential affidavit gives rise to a legitimate claim for public interest immunity.
2. Apart from the protection of the safety of Mr Rivers himself, there is a strong public interest in protecting him to ensure that the "continued flow" of information and evidence from like-minded "informants" and witnesses in the future: see, for example, Attorney General (NSW) v Lipton [2012] NSWCCA 156 at [37] (Basten JA). There is also, in some instances, disclosure of information that may be considered to be confidential police methodology.

The accused has a legitimate forensic purpose in seeking access to the material

1. While the prosecution will adduce other `evidence capable of supporting a number of inculpatory inferences in Mr Al Batat's case, Mr Rivers will be a crucial witness in the case. It may be, depending on the view the jury takes of the circumstantial evidence, that his credibility will be critical to the outcome of the trial. For that reason there is a legitimate interest and forensic purpose in disclosure of the material to the defence. That interest goes beyond the personal interests of the accused men, and extends to the community and public interest in ensuring the efficacy of any conviction and the abhorrence with which a civilised society holds the punishment of the innocent.

The material in MFIs 41 and 42

1. With two exceptions, I am not satisfied that the public interest in releasing the material in the first volume of material produced in answer to the subpoena outweighs the public interest in maintaining confidentiality and the secrecy of the material.
2. There is no material that supports an inference of Mr Al Batat's innocence. However, there is material that may impact on the cross-examination of Mr Rivers and his credibility. While there are some (redacted) portions that could provide particular detail of relevant matters, there is ample material in the unredacted parts of the documents to enable Mr Al Batat to mount his defence and undermine Mr Rivers' credibility.
3. I have considered the material at pp 204, 206, 207, 219, 235 and 206 of MFI 42 (and related material in the volume) in the context of the evidence in paragraphs [52]-[58] of Mr Smith's confidential affidavit and paragraphs [25]-[27] of Mr Willing's confidential affidavit. The balancing exercise inevitably leads to a conclusion that the material should remain confidential. Any forensic use that could be made of the detail in the redacted parts is far outweighed by the concerns that arise from the evidence in the affidavits of Messrs Smith and Willing.
4. I have considered the material where Mr Rivers or the police express concerns about Mr Rivers safety and possible responses to those concerns. That material either includes material that may disclose Mr Rivers' general location or is of little or no moment in any assault on his credibility. The material at p 184 may betray police methodology of a particular kind with no commensurate forensic relevance to Mr Al Batat in the conduct of his defence.
5. The two exceptions to my general ruling that the public interest immunity claim should be upheld are: 1. MFI 42, p 154 - the redacted version in the text message sent at 8:45 on 9 January 2018. If there is a legitimate claim of public interest immunity over that material, it is outweighed by the public interest in disclosure. The material is capable of explaining Mr Rivers' motivation in not providing assistance at that time. The material does not disclose material that would place Mr Rivers in danger, disclose his true identity or allow him to be located. 2. MFI 42, p 156 - the redacted version under the heading "safety concerns". Again, the redacted part does not disclose information that might place Mr Rivers or his family in danger. Part of the redacted entry may have particular significance to aspects of the defence case articulated in Mr Al Batat's defence case statement and in the course of argument. It is not information that would be surprising to those familiar with the relationships between relevant participants.

The material produced on 17-18 August 2020

1. I turn to the second batch of material produced by the Commissioner.
2. Almost all of the redacted portions of the 142 pages relate to information that may disclose Mr Rivers' location or his personal details and electronic addresses. There would be no significant forensic advantage to Mr Al Batat in the disclosure of this information whereas there is a strong public interest in maintaining the secrecy of the information concerned. Other parts disclose irrelevant personal and health information of people close to Mr Rivers. Again, I would uphold the claim for public interest immunity over this material.
3. There is one exception. This is at pp 81 and 84 of the confidential bundle. This is in part a duplication of the material in MFI 42, p 156 (see above at [33(2)]). The material in this volume discloses a relevant inconsistency in the things Mr Rivers said to police and, again, may have relevance to a particular aspect of Mr Al Batat's defence. Subject to the redaction of geographical information, I am unable to identify any basis upon which it could be held that disclosure of this material will jeopardise Mr Al Batat's safety.

The material produced on 20 August 2020

1. The material produced on 20 August 2020 comprised of a Confidential Bundle of 240 pages. The parties limited the scope of the argument by reference to the pages identified by the Commissioner's solicitors in an email dated 20 August 2020 and the matters pressed by Mr Al Batat (set out above at [8]). However, I examined the entire bundle to place the relevant parts in context and to understand what was, and what was not, available to Mr Al Batat's lawyers.
2. The redactions in this bundle are almost all concerned with the same subject matter as those discussed at [32] above. There is more detailed information in this bundle on the same general subject matter: see, for example, p 121. There is material that would assist in an attack on Mr Rivers' credibility. However, there is substantial material that is disclosed that allows for such an attack, and the material in the confidential affidavits of Mr Smith and Mr Willing is such that the balancing exercise required by s 130 of the Evidence Act, taking in the relevant criteria, results in the claim for public interest immunity being upheld.
3. Having undertaken the necessary balancing exercise, I would not release any material in the "Confidential Bundle 20 August 2020". In other words, the claim for public interest immunity in respect of the redacted portions of the documents in that bundle is upheld.

The scope of these rulings

1. These rulings generally uphold the claim for public interest immunity related to the documents produced confidentially on subpoena. It is not known what information is known to the parties as to some of the details redacted. In particular, given the relationship between Mr Rivers and the accused Mr Luo, it may be that information contained in the subpoenaed documents is already available to the defence lawyers. Different considerations may arise if an attempt is made to elicit relevant information in cross-examination (or in chief by the Prosecutor). There was a discussion about this when the Court was closed to the public and the parties on 24 August 2020. [8]
2. What is clear is that cross-examination on the documents (and redactions) per se would not be permitted.
3. Similarly, cross-examination that might disclose Mr Rivers' whereabouts would not be permitted and is already subject to orders prohibiting such questioning. [9]
4. However, it may be that cross-examination concerning the details of the subject matter in relation to which the claim for public interest immunity has been upheld on the documents subject of the subpoena would be permissible. It will turn on the conduct of the trial and manner of questioning. It may be that the Commissioner would seek to be heard further if such cross-examination is embarked upon.

Orders

1. At this stage, the orders I make are these: 1. Subject to the exceptions set out in orders (2)-(4) below, the claim for public interest immunity over the green redactions in the material produced on subpoena by the NSW Commissioner of Police is upheld. 2. The document at p 154 of MFI 42 is to be produced in unredacted form and access granted to Mr Al Batat's legal representatives. 3. The document at p 156 of MFI 42 is to be produced in unredacted form and access granted to Mr Al Batat's legal representatives. 4. Subject to the redaction of place names and geographical locations, the document(s) at pp 81 and 84 of the Confidential Bundle of 18 August 2020 are to be produced in unredacted form and access granted to Mr Al Batat's legal representatives. 5. Orders (2), (3) and (4) are stayed until Wednesday, 2 September 2020 to allow the NSW Commissioner of Police to consider whether it seeks to appeal against these rulings.

Endnotes

1. R v Al Batat & Ors (No 1) [2020] NSWSC 967.
2. See, for example, R v Al Batat & Ors (No 6) [2020] NSWSC 1079.
3. I have borrowed the verb from the joint judgment of Gleeson CJ, Gummow and Callinan JJ in Grey v The Queen [2001] HCA 65; (2001) 75 ALJR 1708 at [23].
4. Transcript (T) 24 August 2020, p 581.
5. T 11 August 2020, p 418
6. T 11 August 2020, p 394.
7. Confidential transcripts of proceedings conducted in closed court on 11 and 24 August 2020 will be kept in sealed envelopes on the Court file.
8. Confidential T 24 August 2020 pp 5-8.
9. R v Al Batat & Ors (No 1) [2020] NSWSC 967 at [36], order (9). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 November 2020