R v Cox

"The general rule is that the Court will not order the production of a document, although relevant and otherwise admissible, if it would be injurious to the public interest to disclose it. However the public interest has two aspects which may conflict. These were described by Lord Reid in Conway v Rimmer [1968] UKHL 2; (1968) AC 910 at 940 as follows:

'There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done'.

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."

9 The present case involves serious criminal charges brought against the four accused. In such a case, the authorities recognise that it is appropriate to adopt a more "liberal" approach to the production of documents in respect of which public interest immunity is claimed than in a civil case. See Alister v R[9]; Sankey v Whitlam[10]; Commonwealth v Northern Land Council[11].

10 It is well recognised that the production of documents which have a tendency to reveal the identity of informers, or to compromise sources of police and other investigative information, may be properly exempt from production and inspection on the grounds of public interest immunity. See D v National Society for the Prevention of Cruelty to Children[12]; Sayer v National Mutual Life Association of Australasia Limited[13]; Re XZ[14]; Sankey v Whitlam[15]. In XZ[16], the Full Court of the Federal Court stated:

"The authorities have thus come to recognise the principle that the identity of a police informer should, as a matter of public policy, be protected against disclosure save where a countervailing public interest is shown. This aspect of public policy is calculated to protect the administration of justice from the harm that would follow were the police to be hindered in preventing and detecting crimes by the drying up of information from police or informers."

11 The claim for public interest immunity in this case is supported by the two affidavits of Mr Rodger to which I have referred. The "open" affidavit (that is, the affidavit which is not confidential) of Mr Rodger sets out in some detail the potential detriment to intelligence gathering capabilities of the Victoria Police in respect of serious crimes should confidential information obtained from informers, and the methods of gathering and analysing evidence undertaken by the police, be disclosed by the production of documents in this case. In summary Mr Rodger deposes that if criminals, including corrupt police, are made aware of the intelligence or the evidence gathered about them, the systems used by the police force to gather and analyse that intelligence or evidence, the gaps which may exist in respect of the material, and knowledge of its likely sources, criminals and corrupt police may be able to exploit that knowledge. Further if that information was made available, it may be disseminated among professional criminals. In addition the release of information, intelligence and analysis in respect of persons who are the targets of a criminal investigation might increase the risk of other criminal activity within the community including assaults and intimidation of informers and other persons. Mr Rodger also has sworn that if information relating to police investigative practices, procedures and methodology became publicly known, knowledge of those systems and procedures might arm persons who engage in serious crime with information which they can use to defeat those systems and procedures. Further, Mr Rodger deposes that the release of information which might lead to the identification of informers, their families or associates, or of other persons who assist the police, might adversely affect and inhibit the free flow of further information or intelligence to the Victoria Police and police services.

12 Each of the matters deposed to by Mr Rodger are, in my opinion, matters of public interest which, in an appropriate case, the Court would protect. Indeed Mr Young did not contend to the contrary. The question which I need to decide is, in respect of each document which has been edited, whether the principles I have referred to apply, and, if so, whether in performing the balancing exercise to which I have referred, the edited sections of the document should be protected from production. In order to answer that question, it is necessary for me to examine each edited section of each document in order to determine whether the claim for public interest immunity should be upheld. I therefore turn to examine each item of the subpoena documents which has been the subject of such editing.

Item 1: Information Reports

13 Item 1 of the subpoena specifies unedited copies of nine information reports in the possession of the Task Force. Copies of each of those reports have been provided to the accused Cox in response to the subpoena. However each of the reports contain sections which have been edited on the basis of a claim of public interest immunity. It is necessary for me to deal seriatim with each claim for privilege in respect of each of those nine reports.

14 I was informed in argument that an information report is a report compiled by a member of the Task Force in relation to information and intelligence obtained by that member of the Task Force and from investigations which have been undertaken by that member. It is a general report which is then circulated within the team which is assigned to conduct the particular investigation. In order to determine the claims for public interest immunity it is necessary for me to deal seriatim with each of the claims made in each of the nine reports.

(a) Information Report CEJAK 105R0046. I do not order release of any of the information edited on this report. The items edited on page one are the subject of a valid claim of public interest immunity. The item on page two is irrelevant. Further it would be covered by public interest immunity.

(b) Information Report CEJAK 105R0063. I do not order release of any of the information edited. It is subject to a valid claim for public interest immunity.

(c) Information Report CEJAK 105R0106. I do not order release of any of the information edited. It is subject to a valid claim for public interest immunity. The information reveals addresses of potential sources of information and informer identifications.

(d) CEJAK 105R0121. I do not order release of any of the information edited, save for the last editing on page two which follows immediately after the sentence "he agreed to make a statement concerning his relationship with Cox and Salder (sic)". Apart from that sentence, the information is covered by public interest immunity. In relation to the sentence which I order to be released, insofar as there may be a public interest in the information, any such interest is outweighed by the relevance of that information to the case, and of its potential significance to the case for the accused.

(e) Information Report CEJAK 105R0128. I order release of the edited section on page one apart from the first six words. In other words I order release of the part of the edited section commencing with the words "... refers to ....". Apart from the first six words, I do not consider that the edited section is covered by public interest immunity.

(f) Information Report CEJAK 105R0132. I do not order release of the information edited. It is subject to a valid claim for public interest immunity, in particular based on the importance of protecting methodology employed by the Customs Service.

(g) Information Report CEJAK 105R0146. I order release of all the information which has been edited save and except for the last sentence of the fourth last paragraph edited on page three (that is the sentence immediately after the words " ... to Duy Le"). As the Crown case is presently constituted, Lai is an important witness in the case. His role as a police informer, recruited by Cox and Sadler, is evident from the depositions. The address contained in the edited portion is set out in the depositions. It is not evident to me how disclosure of the parts edited would damage the public interest. On the other hand, the interests of justice require the disclosure of that information. The interests of justice include public confidence in the fairness of the processes of the criminal justice system. The accused, and indeed a reasonable bystander, would rightly feel a sense of disquiet should the portions which have been edited be withheld from the accused.

(h) Information Report CEJAK 105R0148. I do not order provision of the information which has been edited from this report. I uphold the claim to public interest immunity. The Information edited relates to an informer. The information deleted is not of sufficient moment to the case to outweigh the public interest in the protection of the identification of the informer.

(i) Information Report CEJAK 21R0114. I order release of all the information edited in this report except for the following: the address on page one in the paragraph commencing "DS Sergeant Ross and D Sergeant O'Neill attended ..."; the location deleted on the second line of the next paragraph; the addresses deleted in the second and third paragraphs on page two; all the telephone numbers in the document; the whole of the third last and second last paragraphs on page two (from "Also of interest ..." to "... 113 times"); the sixth last line on page two (commencing with the words "in December 1998/January 1999").

Members' Diaries

15 Under a previous subpoena the respondent had provided to the accused copies of diaries of the members of the Task Force. Those diaries had also been edited by deleting matters in respect of which public interest immunity was claimed. The accused takes issue with a number of the claims made by the respondent based on public interest immunity. In order that I assess the claim for public interest immunity I have been provided with confidential exhibit JR7 which consists of the members' diaries. The parts of the diaries which have been edited, when provided to the accused, have been marked with stencil. Mr Young has provided a document identifying the sections of editing to which the accused takes exception. Exhibit JR3 sets out the objection taken by the respondent to disclosure of those edited parts. Confidential exhibit JR5 contains that information, together with additional statements expanding upon the claims made by the respondent for public interest immunity.

16 The matters raised by Mr Young on behalf of the accused Cox concern 56 segments of the members' diaries which have been edited. I have read each of those segments and consider the objections made by the respondent to the production of unedited sections contended for by the accused. Rather than setting out, seriatim, my decision in relation to each of the 56 segments, for the purposes of brevity, I uphold each of the objections specified by the respondents save and except for the following:

(a) The diary of RJ Freeman. I order disclosure of the section edited in the diary entry 11-2-05 at 0945 (page 100).

(b) The diary of M Hardy. I order disclosure of the entries for 16-11-02 (pages 103-104) which have been edited. Their potential relevance outweighs the matters relied upon by the respondent.

(c) Diary of B Horan 31-10-03 1110. The potential relevance of the entry outweighs the matters relied upon.

(d) Diary B Horan 8-12-03 2125 (page 68). I order the disclosure of all of the edited section of the entry, with the exception of the portion edited on the first line (identifying an address).

(e) Diary B Horan 19-12-03 1015 (page 71). The edited information is to be disclosed.

(f) Diary entry B Horan 18-3-04 1400 (page103). I order disclosure of the second and third lines of this entry which have been edited.

(g) B Horan diary entry 17-4-03 1325 (pages 165-6). The whole of this entry should be disclosed except for the last five lines (on page 166).

Item 3: Transcript of Interview with Duy Le dated 12 February 2005

17 The next item specified in Cox's subpoena, which is in contention, is item 3, namely an unedited copy of the transcript of the taped record of interview between Detective Senior Sergeant Paul Ross and Detective Senior Sergeant John Rodger, and Duy Le, conducted on 12 February 2005. The respondent has provided to Cox's solicitors an edited transcript of that record of interview. Confidential exhibit JR11 consists of an unedited version of that interview. The parts which have been edited are marked in stencil. They consist of questions 14 to 44 and the answers thereto, and questions 50-53 and the answers thereto.

18 The matters contained in Mr Rodger's affidavit do not, in my view, establish a claim for privilege based on public interest immunity in respect of those passages in the record of interview. Further, on their face, they relate to matters which may be relevant to the issues between the Crown and Cox, Sadler and Ian Ferguson. The interests of justice predominate to preclude the application of the public interest immunity in respect of the passages edited from the interview. Therefore I order that disclosure be made by the respondent to the accused of those passages.

Item 4: Record of Interview with Duy Le on 12 February 2005 referred to in the diary of Detective Senior Sergeant Ross

19 The fourth item sought in the subpoena is described as follows:

"Any record (including any video or audio recording, transcript or electronic recording) of the interview conducted with the witness, Duy Le on 12 February 2005 referred to in the diary of Detective Senior Sergeant Paul Ross concerning 're bank file', ... ."

20 A transcript of the interview corresponding to the description in item 4 of the subpoena has been provided, in edited form, to the accused. The unedited version of that transcript is part of confidential exhibit JR11. The edited portions are highlighted by stencil.

21 Each of the items edited are addresses. The following items edited from the interview are subject to a legitimate claim for public interest immunity: question 30; the suburb referred to as the last word in the answer to question 38; the first address referred to in question 40; question 41; questions 44, 49, 50, 53 and 59; the answer to question 59; the first suburb referred to in question 60; question 62; the first address given in question 71; question 72. I do not consider that the other addresses referred to, namely at question 24 (which is referred to also in the other edits) is the subject of privilege unless it is the present address of the witness Duy Le. That address was referred to in the statement of Duy Le which is contained in the depositions.

Item 11: Report from Detective Acting Senior Sergeant O'Neill entitled "Interview of Ky Quoc Pham ... on his return to Australia"

22 Item 11 of the subpoena, which is also in contention, is specified as:

"An unedited copy of the report from Detective Acting Senior Sergeant Michael O'Neill to the officer in charge, CEJA Task Force dated 7 November 2003 entitled 'interview of Ky Quoc Pham (27-9-66) on his return to Australia'."

23 The respondent provided an edited copy of that report to the accused. An unedited copy of the report forms part of confidential exhibit JRL11. The edited portions have been marked with stencil.

24 With one exception I uphold the claim of the respondent for privilege based on public interest immunity in respect of the edited portions of the report. Those portions in respect of which the privilege applies disclose an address, and also disclose methodology and the inter-agency communication in respect of investigation of serious drug offenders. On its face the material excised would not, if disclosed to the accused, be of any advantage to them. Accordingly I uphold the claim for public interest immunity in respect of those edited portions.

25 The one exception to the foregoing conclusion consists of the editing of the second last sentence in the last paragraph on page two of the report. I do not consider that public interest immunity applies to that portion of the report.

Item 13: Copy of pages four to nine of transcript of interview between Detective Sergeants O'Neill and Ross with Loan Tran on 19 December 2002

26 Item 13 of the subpoena, which is in contention, is specified as follows:

"An unedited copy of pages four to nine (both inclusive) of the transcript of the tape recorded interview between Detective Sergeant Michael O'Neill and Detective Senior Sergeant Paul Ross and the witness, Loan Tran, conducted at the CEJA Task Force offices on 19 December 2002."

27 The respondent has provided an edited copy of the transcript of that interview to the accused. An unedited copy of the transcript of the interview forms part of confidential exhibit JR11. The edited sections are highlighted by stencil pen.

28 Having read the transcript, I uphold the claim for privilege based on public interest immunity in respect of each of the parts of the interview which are edited. Those parts relate to issues concerning the safety of the witness. They are covered by public interest immunity. The computer notation at the foot of each page of the transcript is also subject to public interest immunity. Accordingly I do not order provision of any of the edited segments of the interview.

Conclusion and Order

29 The above ruling identifies each of the edited sections of the subpoenaed documents, in respect of which I have upheld the objection of the Chief Commissioner based on public interest immunity. Apart from those edited sections in respect of which I have upheld the claim to public interest immunity, the Chief Commissioner is directed to produce to the Court, pursuant to the subpoena, unedited copies of the documents sought in accordance with this ruling. I further direct that, upon production of those documents to the Court, copies be released to the accused.

[1] (1984) 154 CLR 404 at 414 (Gibbs CJ), 431, (Murphy J), 455-7 (Brennan J).

[2] [1993] HCA 24; (1993) 176 CLR 604 at 617.

[3] [1997] NTSC 29; (1997) 6 NTLR 68; BC 9701038;

[4] [1989] FCA 477; (1989) 23 FCR 191 especially at 199.

[5] (Above) at 412 (Gibbs CJ).

[6] (1978) 142 CLR 1 at 38-9 (Gibbs ACJ), 59 (Stephen J).

[7] Above) at 616.

[8] (Above) at 38.

[9] (Above) at 414 (Gibbs CJ), 431 (Murphy J), 437-8 (Wilson, Dawson JJ), 456 (Brennan J).

[10] (Above) at 42 (Gibbs CJ), 61-62, (Stephen J).

[11] (Above) at 618.

[12] [1977] UKHL 1; (1978) AC 171.

[13] (1994) 34 NSWLR 132 at 143-4 (Powell JA).

[14] [2000] FCA 1143; (2000) 116 A Crim R 308.

[15] (Above) at 61 (per Stephen J).

[16] (Above) at 310-11.