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2 The first statement, dated 8 December 2004, reveals that it was made by a person who had been a chief mate on a vessel sailing in North Korean waters and who had been a member of the Korean Workers Party previously, and who had knowledge of practices existing within the maritime industry of North Korea. The identity of that person and any material that would identify him had been excised from the document provided to me.

3 The second document, dated 9 December 2004, was a statement provided by a person who had sailed in North Korean waters and had been part of the North Korean maritime industry and who had knowledge about aspects of the workings of that industry. Likewise the identity of that person and any material that would identify him had been excised from the document provided to me.

4 The third of the statements provided to me contains no content at all save for the jurat, which of course had the name of the person who had made the statement deleted.

5 Mr Champion informed me that he was advising me, and counsel for the accused men of the existence of the statements in order to comply with his duty as a prosecutor to ensure that all relevant material known to him was identified and so as to enable those advising the accused men to take such steps as they deem to be appropriate.

6 Subsequently, the solicitors for the accused Man Jin Ri issued and served a subpoena upon the Australian Federal Police seeking production of each of the documents. The subpoena was returnable before me on 2 February 2005.

7 On the date of the return of the subpoena Mr Livermore of counsel appeared for the Australian Federal Police and contended that the statements in question should not be produced on the grounds of public interest immunity. Mr Livermore did not seek to argue that there was no legitimate forensic purpose to be served by the production of the documents but he did contend that the issue of public interest immunity was paramount. He sought to rely upon an affidavit sworn by Australian Federal Police Officer Francis Prendergast on 1 February 2005 which affidavit he sought to be provided to me on a confidential basis and which exhibited copies of the three statements in full. Counsel for each of the accused men agreed that it was appropriate for me to give consideration to the confidential affidavit and its exhibits in chambers and then to rule upon the question of public interest immunity which had been raised by the Australian Federal Police.

8 Mr Livermore sought not to disclose in open court the limb of public interest immunity that was relied upon in the affidavit because, he stated, "Even by such a disclosure it may give a pointer to the destruction of the public interest that is sought to be protected."

9 As stated above, the disclosed parts of the first statement reveal that the maker of the statement had detailed knowledge of the North Korean maritime industry. The statement deals with the roles of a Master, the Chief Mate, and a Chief Engineer upon a North Korean ship, as well as with the role of the Political Secretary. The disclosed parts of the second statement reveal that the maker of the statement likewise had detailed knowledge of the North Korean shipping industry and knowledge of the roles on a North Korean ship of the Master, Chief Mate and the Political Secretary. As I have said, the third statement is composed of virtually nothing other than the jurat.

10 It was obvious from the disclosed contents of the first two statements that there was an apparent legitimate forensic purpose to which the documents related. They dealt with matters of relevance to the trial and in particular with the roles of and the authority of various of the accused persons upon a ship. Indeed, both Mr Papas on behalf of Man Jin Ri and Mr Hayden on behalf of Man Sun Song, stated to me that they would seek that the makers of the first two statements be called to give evidence upon the trial of the matter. In these circumstances it was agreed by Mr Livermore and all counsel for the accused that I should follow what has become a not uncommon practice in such applications[1] and that I should examine the documents to ascertain whether there indeed is a legitimate forensic purpose and if so whether that legitimate forensic purpose is outweighed by the public interest in maintaining immunity. However, because the third document was said to refer in a prejudicial way to the accused man Kiam Fah Teng, who prior to the date of the hearing of the application had pleaded guilty to aiding and abetting the importation of a commercial quantity of heroin into Australia, but whose plea had not yet been heard, all counsel agreed that I should not examine the third document until Teng was sentenced.

11 Accordingly, on 2 February 2005 I examined the first two documents in contention. It should be observed that in each case the disclosed parts of the statements reveal all that might be relevant to the proceedings. The non-disclosed parts relate to matters which would identify the maker of the statement.

12 Having read the two documents in question, I concluded that the legitimate forensic purpose for the disclosure of the identity of the makers of the two statements in question was outweighed by the public interest served by the non-disclosure of the identity of the makers of the statements. As requested by Mr Livermore I did not provide specific details of the full nature of the public interest immunity claimed, save to say that it was apparent to me upon reading the statements that issues of safety and risk arose in relation to the makers of the statement if they were identified.

13 That said, however, it was apparent that the material which had been disclosed to counsel was of relevance to the proceeding and possibly relevant to the defences of individual accused members of the Pong Su crew and I indicated that I expected that discussions between the prosecution and counsel for the accused could result in a resolution of the matter between the parties without the need to disclose the identities of the makers of the statements. As stated by me that matter can be revisited if need be.

14 As stated above, the consideration of the third statement was adjourned until after the sentence of Teng was handed down. The third statement was retained by the Australian Federal Police pending that event.

15 Teng was sentenced yesterday. This morning the affidavit claiming public interest immunity sworn by Francis Prendergast and exhibiting the third statement was delivered to me under sealed cover in accordance with the process agreed by all counsel.

16 I have now read the statement in question. It should be noted that the prosecution does not intend to call the maker of the statement to give evidence in the course of the proceeding. The first thing which can be said about the statement in question is that it is a document of the nature dealt with in paragraphs 20 to 23 in the decision of R v Abdullah and ors[2]. Each of the cases referred to in paragraph 20 of the decision of Abdullah is relevant to the statement and in particular the cases of Rogers v Home Secretary[3] and Sankey v Whitlam[4] are applicable.

17 I have given careful attention to the rule referred to in paragraphs 22 and 23 of the decision in Abdullah. The statement in question is a statement which has some general relevance to the matters the subject of this proceeding, although much of it would on any view be inadmissible as hearsay. However, it is apparent from a careful consideration of the document that it contains nothing which could help in any way to show that any accused person is innocent of the charges which have been laid against him. For that reason, an examination of the statement does not reveal any legitimate forensic purpose which may be served by its production. Thus there is no requirement to balance any legitimate forensic purpose with the public interest claimed. However, were it necessary to do so I have no doubt in all the circumstances that the balance would fall on the side of non-disclosure. There is no basis upon which disclosure of the material contained in the statement would assist in any way whatsoever to show that any of the accused men are innocent of the charges laid against them. The issue of balance thus does not arise.[5]

18 Accordingly, I intend to ensure that the document in question is returned to the Australian Federal Police by my associate today. However, I direct that the original of the document be retained by the Australian Federal Police in a safe place pending the final disposition (including any appeal) of this proceeding.