R v Debono [2012] VSC 476

For the Chief Commissioner of Police and the Chief Examiner

1 This judgment concerns a claim by the Chief Commissioner of Police for the exclusion of parts of documents that he produced to the Court pursuant to a subpoena issued by the Accused. The claim is made under s 130 of the Evidence Act 2008 ('Act'), which deals with what is commonly known as 'public interest immunity'.

2 The Accused was served with a custody order dated 13 May 2009 made pursuant to s 18(2) of the Major Crime (Investigative Powers) Act 2004 ('MCIP Act') requiring him to attend before the Chief Examiner to give evidence ('Custody Order'). The Custody Order was issued by the Chief Examiner under a coercive powers order made on 13 August 2008 by Cummins J and corrected by his Honour on 9 October 2008 ('CPO'). The CPO was made in respect of the organised crime offence described initially as 'Murder', and following the correction on 9 October 2008, as 'Murder of Wayne Keith Boyd on or about 9 November 2001'. The CPO was extended on 10 February 2009.

3 On 21 May 2009, the Accused attended before the Chief Examiner but declined to take an oath or make an affirmation. On 17 July 2009, the Accused was charged with an offence under s 36(3) of the MCIP Act, of refusing to take an oath or make an affirmation.

4 On 2 September 2011, the Accused commenced a proceeding seeking a revocation of the CPO and on 9 February 2012, he commenced a proceeding seeking judicial review of the CPO. On 8 May 2012, both proceedings were dismissed.[1]

5 In the criminal proceeding against him, the Accused sought to collaterally challenge the validity of the MCIP Act, the CPO and the Custody Order by way of a pre-trial application under s 199(1)(c) of the Criminal Procedure Act 2009 ('CP Act'). The Accused also sought leave to issue subpoenas on the Chief Commissioner of Police and the Chief Examiner for the production of affidavits and other documents tendered in support of the applications for the CPO and its correction ('Applications'), and the transcripts of hearings relating to the Applications (collectively, 'Applications Documents').

6 On 21 August 2012, I decided that the MCIP Act was not invalid, and that the Accused had a legitimate forensic purpose in issuing subpoenas for the production of parts of the Applications Documents in order to further pursue his claim that the CPO and the Custody Order were invalid. I found that the legitimate forensic purpose was confined to the parts of the Applications Documents that were relevant to the issue of whether the preconditions in the MCIP Act for the making of the CPO were satisfied ('Relevant Parts of the Applications Documents'). I ordered that the Accused have leave to issue subpoenas in respect of the Relevant Parts of the Applications Documents.

7 The reasons for my decision of 21 August 2012 ('Previous Decision')[2] set out the background facts outlined above in greater detail. For a proper understanding of this judgment, it should be read in conjunction with my Previous Decision.

8 On 4 September 2012, the Accused served identical subpoenas on the Chief Commissioner of Police and the Chief Examiner seeking production of the Applications Documents. The subpoenas were not confined to the Relevant Parts of the Applications Documents in accordance with my order dated 21 August 2012. I was informed by Mr Lachlan Carter, counsel for the Accused, that the subpoenas were accompanied by a covering letter which clarified that production was sought of only the Relevant Parts of the Applications Documents.

9 On 24 September 2012, the Chief Commissioner of Police and the Chief Examiner made a claim for public interest immunity in respect of parts of the Applications Documents. The claim was supported by an affidavit sworn on 24 September 2012 by Detective Senior Sergeant Graham Guy, which was filed and served on the Accused and the Director of Public Prosecutions ('DPP'). The Chief Commissioner of Police and the Chief Examiner produced to the Court copies of the Applications Documents with redactions in respect of the parts that were the subject of the claim for public interest immunity. They also produced to the Court unredacted versions of the Applications Documents.

10 At the hearing on 28 September 2012, it became apparent that some of the information that was redacted had already been disclosed to the Accused. Accordingly, the Chief Commissioner of Police agreed to file a supplementary affidavit of Mr Guy and to produce a further version of the Applications Documents with that information remaining unredacted. By consent, I ordered that the further redacted versions of the Applications Documents that were to be produced be served on the Accused and the DPP. As the Chief Commissioner of Police and the Chief Examiner held the same information and made identical claims for public interest immunity, by consent, I ordered that the Chief Examiner be excused from further compliance with the subpoena that had been served on him.

11 At the hearing on 28 September 2012, the DPP, the Accused and the Chief Commissioner of Police agreed that I should inspect the unredacted versions of the Applications Documents. After that hearing, the Accused and the DPP informed the Court that they had no objection to the Court reading the transcript of the initial hearing before Cummins J on 22 April 2008, even though it was not included in the subpoena that was served on the Chief Commissioner of Police.

12 On 3 October 2012, the Chief Commissioner of Police produced to the Court, and served on the Accused and the DPP, a supplementary affidavit of Mr Guy and further redacted versions of the Applications Documents ('Redacted Applications Documents').

13 For the reasons set out below, I have decided to uphold the claim for public interest immunity in respect of the information deleted from the Redacted Applications Documents ('Deleted Information'). Accordingly, if the Accused wishes to pursue the collateral challenge to the validity of the CPO and the Custody Order, he must do so without the Deleted Information.

Sections 130 and 131A of the Evidence Act and public interest immunity principles

(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 an accused 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 an accused - whether the direction is to be made subject to the condition that the prosecution be stayed.

15 Although s 130(1) of the Act refers to the admission of evidence, s 131A makes it clear that the provisions of s 130 also apply to various forms of compulsory disclosure such as the production of documents pursuant to a subpoena.

16 Clause 8 of pt 2 of the Dictionary to the Act provides that 'document' includes 'any part of [a] document'. This means that the Court can direct that only part of a document be produced pursuant to a subpoena.

17 The parties were in agreement about the general principles governing a claim for public interest immunity.

18 The common law doctrine of public interest immunity informs the content and operation of s 130 of the Act.[3]

19 Section 130 of the Act applies only to 'information or a document that relates to matters of state'. It follows that information and documents that do not relate to matters of state cannot be excluded under s 130. The circumstances in which information or a document is taken to relate to matters of state that are listed in s 130(4) are not exhaustive; that is, they do not limit the circumstances in which information or a document may be taken to relate to matters of state.

20 Section 130(1) of the Act refers to two competing public interests - on the one hand, the public interest in admitting into evidence information or a document that relates to matters of state, and on the other hand, the public interest in preserving secrecy or confidentiality in relation to the information or the document. However, it does not set out the content of these public interests.

21 The public interest in admitting the evidence is based on the principle that all relevant and (otherwise) admissible evidence should be admitted in order to achieve justice in the case at hand.[4] This proposition also applies under s 130 of the Act.[5]

22 Section 130(5) of the Act sets out, non-exhaustively, the matters that the Court must take into account for the purposes of s 130(1).

23 In a case involving serious criminal charges against an accused, 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.[6]

24 A relevant matter is whether the information or the document has contemporary importance or is only of historical interest.[7]

25 It is appropriate for the Court to consider the forensic purpose for which the information is intended to be used in the proceeding and to assess its potential forensic significance.[8] This proposition is supported by s 130(5) of the Act, which requires the court to take into account, among other matters: '(a) the importance of the information or the document in the proceeding'; and '(c) the nature of the offence ... to which the information relates, and the nature of the subject matter of the proceeding'.

26 In Public Transport Ticketing Corporation v Integrated Transit Solutions,[9] Einstein J observed as follows in relation to s 130(5)(a) of the Evidence Act 1995 (NSW):

...the matter that the Court is required to have regard to ... is not whether the document will 'materially assist' the case of the party seeking access but the importance of the document in the proceedings. For example, a document may not materially assist the case of a party, but may be important because it would assist the Court to resolve the issues in dispute or because it contradicts or explains the case of the party's opponent.[10]

27 The occasion to undertake the balancing exercise of weighing the competing public interests arises only after the Court has determined that the documents in question are entitled to protection from disclosure.[11]

28 The onus lies upon the party seeking to prevent disclosure of information or a document to establish that the public interest in preserving secrecy or confidentiality outweighs the public interest in producing that information or document. Pursuant to s 142(1) of the Act, the standard of proof for establishing these matters is 'on the balance of probabilities'. Section 142(2) provides that, in determining whether it is 'so satisfied', the Court must take into account 'the importance of the evidence in the proceeding' and 'the gravity of the matters alleged in relation to the question' before the Court. The following observations of the Court of Appeal in Victoria v Brazel[12] are also apposite to s 130 of the Act:

The claim for immunity must be articulated with rigour and precision, and supported by evidence demonstrating the currency and sensitivity of the information, so as to constitute a compelling case for secrecy. Anything less will be unlikely to suffice.[13]

29 In the present case, the Chief Commissioner of Police relies solely on s 130(4)(c) of the Act. He must establish both that the Deleted Information relates to 'matters of state' pursuant to that section and that the balancing exercise favours non-production.

30 In support of his claim for public interest immunity based on s 130(4)(c) of the Act, the Chief Commissioner of Police relied on the affidavit of Mr Guy sworn on 24 September 2012 and Mr Guy's supplementary affidavit sworn on 2 October 2012. The Accused did not seek to cross-examine Mr Guy and did not file any affidavit evidence to contradict Mr Guy's evidence.

31 In his affidavits, Mr Guy deposed to the following matters:

(a) He is a Detective Senior Sergeant. Until mid-2012, he was attached to the Victoria Police Homicide Squad as a Sergeant and was responsible for the investigation of the murder of Mr Boyd. He is the informant in relation to the charge against the Accused under s 36(3) of the MCIP Act.

(b) No person has been charged in relation to the murder of Mr Boyd and the Homicide Squad investigation into that murder remains ongoing. The Homicide Squad is continuing its inquiries to corroborate its investigative theory and finalise a brief of evidence before being in a position to charge any suspected alleged offenders. Maintaining the confidentiality of information about the state of the investigation and the current investigative theory is important so that the investigators' ability to obtain further information from individuals is not impaired.

(c) It is important that the material the subject of the investigation is not disseminated beyond those involved in the investigation, as this assists investigators in obtaining untainted evidence from witnesses and from those suspected of being involved in the offence.

(d) The release of information relating to persons who have been interviewed and/or from whom police statements have been taken has the potential to affect the progress of the police investigation, by increasing the risk of witnesses and potential suspects communicating with one another and discussing the content of their statements.

(e) Telephone interception warrants and the identity of telephone numbers the subject of such warrants are kept secret to ensure that the subjects of the investigation cannot interfere with such processes.

(f) The Custody Order stated that 'A post mortem examination revealed that Boyd had sustained a number of gunshot injuries'. This statement does not disclose the method of the murder; it merely discloses the cause of death as gunshot injuries. No information was disclosed in the Custody Order about the type of firearm or ammunition used, how many gunshot injuries were received and their location or the events leading up to Mr Boyd's murder. Those matters would only be known by the investigators and the persons involved in the murder. If those matters were disclosed to the Accused, the investigation of the offence would be impaired.

(g) Details of the commission and methodology of the offence have not been disclosed to the Accused. This sensitive information and intelligence is central to the ongoing investigation and maintaining its confidentiality is necessary to protect the effectiveness of the investigation of the murder.

32 In accordance with the agreement of the parties,[14] I have read the Redacted Applications Documents as well as the unredacted versions that were produced on 24 September 2012. I have also read the transcript of the hearing before Cummins J on 22 April 2008.

Public interest in preserving confidentiality of redacted information

33 The first issue that I must determine is whether I am satisfied that disclosure of the Deleted Information would prejudice the investigation or prosecution of an offence. In determining this question, I will focus primarily on the Relevant Parts of the Applications Documents because the leave that I granted to the Accused to issue subpoenas was confined to those parts. The grant of leave was based on my finding that the Accused had a legitimate forensic purpose in seeking the production of those parts for the purpose of seeking to establish that the preconditions in the MCIP Act for the making of the CPO were not satisfied.[15]

34 The key preconditions in the MCIP Act for the making of a coercive powers order are as follows:

(a) The coercive powers order must be made in respect of an 'organised crime offence', which is defined in s 3 of the MCIP Act to mean an offence which:

(i) is an indictable offence punishable by imprisonment for at least 10 years; and

(iii) involves substantial planning and organisation; and

(iv) forms part of systemic and continuing criminal activity; and

(v) has a purpose of obtaining profit, gain, power or influence.

(b) The application for the coercive powers order must contain the matters set out in s 5 of the MCIP Act.

(c) The coercive powers order must include the matters set out in s 9 of the MCIP Act.

35 The Accused's collateral challenge to the validity of the CPO has focused on the elements of the definition of 'organised crime offence'.

36 The unredacted parts of the Applications Documents disclose that the application for the CPO was signed by Detective Acting Inspector Anthony Silva on 13 March 2008. On the same day, he swore a 70-page affidavit in support of the application ('Affidavit'). In the Affidavit, Mr Silva stated that he believed that the murder of Mr Boyd fell within the definition of 'organised crime offence' and set out his reasons for that belief by reference to elements (ii) to (v) of the definition, as summarised at [34[16]] above.16 Four suspected offenders, including the Accused, are named in the Affidavit ('Four Suspects'). The Affidavit sets out, among other matters, the alleged similarities between the murder of Mr Boyd and the subsequent kidnapping and attempted murder of another person, and the alleged links between the three offences and the manufacture and sale of illicit drugs.

37 The information from the Relevant Parts of the Applications Documents that has been redacted deals directly, or by reference to other redacted parts, with the following:

(a) The identities, roles and relationships of persons relevant to the investigation, including witnesses.

(b) The evidence that has been obtained from witnesses and other sources in support of the current investigative theory.

(c) The events leading up to the murder of Mr Boyd, how and by whom he was murdered and the motives for the murder.

38 Under the heading 'Aim of Coercive Powers Order', the Affidavit outlines outstanding steps in the investigation of the murder of Mr Boyd, including further evidence to be obtained from witnesses.

39 I accept the evidence of Mr Guy, as set out at [31] above. On the basis of that evidence and the contents of the documents that I have inspected, I find the following:

(a) The investigation into the murder of Mr Boyd is ongoing. Although Mr Guy has not provided any details of the nature of the investigators' current inquiries, it can be inferred that the investigators are continuing to investigate the conduct of the Four Suspects.

(b) While some information about the investigation has been released either to the Accused or more generally, important features of the investigation remain confidential to the investigators. Those features include the precise manner in which Mr Boyd was killed; the type of firearm or ammunition that was used; how many gunshot injuries Mr Boyd received and their location; the events leading up to the murder; and the identities of some of the persons who have been interviewed in connection with the murder.

(c) The non-disclosed information that is referred to in (b) above forms part of the Deleted Information.

(d) Disclosure to the Accused of the Deleted Information would prejudice the investigation of the murder of Mr Boyd and any future prosecution by enabling the Accused to:

(i) speak to potential witnesses and either deter them from cooperating with the investigators or contaminate their evidence;

(ii) tailor any responses he provides to questions from the investigators in a manner that impedes the collection of reliable evidence; and

(iii) collude with other suspects and potential witnesses.

40 It follows from the above that the Deleted Information falls within s 130(4)(c) of the Act and therefore relates to 'matters of state'. There is a clear public interest in preserving the secrecy or confidentiality of the Deleted Information so as to avoid prejudicing the investigation or prosecution of an offence, namely the murder of Mr Boyd.

Public interest in production of the Deleted Information

41 Mr Lachlan Carter, who appeared for the Accused, submitted that there is a public interest in the production of the Deleted Information because it would assist the Accused in collaterally challenging the validity of the CPO.

42 In my Previous Decision, I decided that a collateral challenge to the validity of a coercive powers order will ordinarily be confined to the following grounds:

(a) The coercive powers order was not made in respect of any organised crime offence. Under this ground, a coercive powers order will be invalid if one of the five elements of the definition of 'organised crime offence' in s 3 of the Act is not satisfied. This is because the Court's jurisdiction to make a coercive powers order is confined to organised crime offences.

(b) The judge who made the coercive powers order exceeded his or her jurisdiction by misconstruing the definition of 'organised crime offence' in s 3 of the Act.

(c) The judge who made the coercive powers order exceeded his or her powers in an error which appeared on the face of the record.

(d) The coercive powers order does not state that the Supreme Court is satisfied of the matters referred to in s 8(a) and (b) of the Act, having regard to the matters referred to in s 8(b)(i) and (ii), as required by s 9(1).

(e) The coercive powers order is tainted by fraud, bad faith or other impropriety. Without being exhaustive, this would include a situation where the evidence in support of the application for the coercive powers order was false or misleading in a material respect.[17]

43 Collateral challenge of a coercive powers order is not available on the ground of an alleged insufficiency of material in support of the order.[18]

44 Based on my review of the Deleted Information, I am of the opinion that it is very unlikely that that information could, either alone or in combination with any other information available to the Accused, establish any of the grounds set out at [42] above. Accordingly, disclosure of the Deleted Information to the Accused is unlikely to assist the Accused to establish that the CPO is invalid.

45 It follows from my conclusion at [44] above that the public interest in the production of the Deleted Information is weak.

The balancing exercise required by s 130(1) of the Act

46 Having considered the public interest in the production of the Deleted Information and the public interest in preserving its confidentiality, it remains for me to determine, pursuant to s 130(1) of the Act, whether the former public interest is outweighed by the latter public interest.

47 For the purposes of performing the balancing exercise required by s 130(1) of the Act, I have taken into account all the matters set out in s 130(5).

48 In relation to s 130(5)(a) of the Act, I find that the Deleted Information is of some importance to the proceeding because it provides background and context to the CPO and the Custody Order and assists in determining their validity.[19]

49 In relation to s 130(5)(b) of the Act, I find that the fact that production of the Deleted Information is sought by the Accused in a criminal proceeding is significant, and requires the adoption of a liberal approach to ordering production.[20]

50 In relation to s 130(5)(c) of the Act, I find that the subject matter of the proceeding and the nature of the offence and the Accused's defence are such that if the Accused's contentions were accepted, the Deleted Information would have the potential to lead to the making of an order quashing the charge under s 36(3) of the MCIP Act. As discussed at [44] above, however, disclosure of the Deleted Information is very unlikely to assist the Accused in making good his contentions that the preconditions in the MCIP Act for the making of the CPO were not satisfied.

51 In relation to s 130(5)(d) of the Act, the likely effect of producing the Deleted Information has been discussed at [39](d) and [44] above. Having regard to my conclusions in those paragraphs, the option of making an order for production of the Deleted Information subject to undertakings or other safeguards to limit the publication of that information does not arise. In the circumstances of the case, any disclosure of the Deleted Information to the Accused, even if coupled with a strict confidentiality regime, would pose a serious risk of prejudice to the investigation or prosecution of an offence, namely the murder of Mr Boyd.

52 In relation to s 130(5)(e) of the Act, I find that the substance of the Deleted Information has not already been published.

53 In relation to s 130(5)(f) of the Act, I note that the Accused has not submitted that any direction that is made that the Deleted Information not be produced should be subject to the condition that the prosecution of the charge under s 36(3) of the MCIP be stayed.

54 Having regard to the weak public interest in the production of the Deleted Information, and the compelling public interest in preserving its confidentiality, there can be no doubt that the former is outweighed by the latter.

55 It follows that the Chief Commissioner of Police has substantiated his claim for public interest immunity in relation to the Deleted Information. If the Accused wishes to further pursue his collateral challenge to the validity of the CPO and the Custody Order, he must do so on the basis of the information that has already been provided to him.

56 I propose to give directions for the filing of further submissions and to adjourn the hearing to a date to be fixed to enable all outstanding pre-trial issues to be dealt with at that time.

[1] See BCD v Chief Examiner [2012] VSC 193 (11 May 2012).

[2] R v Debono [2012] VSC 350 (21 August 2012).

[3] NSW v Public Transport Ticketing Corporation [2011] NSWCA 60 (23 March 2011) [43] ('PTTC').

[4] See Sankey v Whitlam (1978) 142 CLR 1, 49, 95-6 ('Sankey').

[5] Fernando v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 975 (16 September 2003) [37].

[6] R v Cox [2005] VSC 249 (15 July 2005) [9] ('Cox'), citing Sankey (1978) 142 CLR 1, 42, 61-2; Alister v The Queen (1984) 154 CLR 404_,_ 414, 431, 437-8, 456 ('Alister'); Cth v Northern Land Council [1993] HCA 24; (1993) 176 CLR 604, 618 ('Northern Land Council').

[7] Cf. Sankey (1978) 142 CLR 1, 41-2; Northern Land Council [1993] HCA 24; (1993) 176 CLR 604, 618; Victoria v Brazel [2008] VSCA 37; (2008) 19 VR 553, 568 [49], 574-5 [68] ('Brazel'); PTTC [2011] NSWCA 60 (23 March 2011) [52], [82].

[8] See, e.g. Penrith Rugby League Club Ltd v Brown [2004] NSWSC 1182 (7 December 2004) [27]-[28].

[9] [2010] NSWSC 607 (8 June 2010) ('Integrated Transit').

[10] Integrated Transit [2010] NSWSC 607 (8 June 2010) [22]. Odgers notes that while the NSW Court of Appeal allowed an appeal in this case, there is no reason to doubt the correctness of this observation: see Stephen Odgers, Uniform Evidence Law (Lawbook Co, 10th ed, 2012) 761-2.

[11] Deputy Commissioner of Taxation v Law Institute of Victoria Ltd (2010) 27 VR 51, 66 [53].

[12] [2008] VSCA 37; (2008) 19 VR 553.

[13] Brazel [2008] VSCA 37; (2008) 19 VR 553, 575 [68].

[14] See above [11].

[16] It is not in dispute that element (i) was satisfied.

[17] R v Debono [2012] VSC 350 (21 August 2012) [181] (citations omitted).

[18] See R v Debono [2012] VSC 350 (21 August 2012) [163]-[181].

[19] Integrated Transit [2010] NSWSC 607 (8 June 2010) [22].

[20] Cox [2005] VSC 249 (15 July 2005) [9].