R v Francis

LOWER COURT District Court JURISDICTION : LOWER COURT 03/11/0747 FILE NUMBER(S) : LOWER COURT Blackmore DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60061/04

MASON P DUNFORD J SIMPSON J

Wednesday 7 April 2004 REGINA v Vincent FRANCIS Judgment 1 MASON P: I have had the benefit of reading the judgment of Simpson J with whom I agree, subject to the following comments. 2 I agree that the absence of reasons from the primary judge means that it would be inapt and unfair to require of the appellant that he establish error according to the strict principles of House v The King (1936) 55 CLR 499. But a persuasive onus remains with the applicant, albeit that he is fettered in knowing very little about the basis of the claim for public interest immunity or the reasons of Blackmore DCJ. This Court should acknowledge the superior position of the primary judge in understanding the potential impact of the subpoenaed material upon the fair trial aspect of the public interest immunity calculus. 3 We were, however, assisted by the submission of senior counsel for the applicant who developed the forensic purpose underlying the subpoena. This put at its highest the hoped-for utility of the documents sought to be produced. Of course, the Court saw the documents themselves and was privy to the material (verified on oath and tested, to a degree, in our questioning of Mr Fagan SC in closed court) as to the bases and strength of the non-judicial public interests put on the other side of the balance. 4 This information comfortably satisfied me that the judge committed no error and that no injustice is done to the applicant in upholding the claim for public interest immunity. 5 If this were a dispute in the civil jurisdiction of the District Court, Evidence Act principles would apply to the resolution of interlocutory issues covering production of documents (see District Court Rules, Pt 22 r6; Pt 29 rr1, 11). The common law may not differ materially, but that is all the more reason (it seems to me) why the Rules Committee and/or Legislature should consider ensuring that criminal pre-trial litigation proceeds according to identical principles governing the direct adduction of evidence at trial. (I express no view as to whether legislation is necessary.) 6 I agree with the orders proposed. 7 DUNFORD J: I agree with the orders proposed by Simpson J for the reasons given by her Honour. 8 SIMPSON J: This is an application, pursuant to s5F of the Criminal Appeal Act 1912, for leave to appeal against an interlocutory judgment and order made by Blackmore DCJ on 5 February 2004 in the course of criminal proceedings.

facts 9 On or about 25 January 2004 a trial of five men, of whom the applicant is one, indicted on a charge of conspiracy to import prohibited drugs, commenced in the District Court before Blackmore DCJ. 10 Solicitors acting for the applicant caused a subpoena to be served upon the Australian Customs Service. The schedule to the subpoena specified four categories of documents the subject of the subpoena required to be produced. 11 On 5 February 2004, the seventh day of the trial, an application was made to the court on behalf of the Commonwealth of Australia, to set aside, in part, the subpoena. The Commonwealth was prepared to, and did, provide some of the documents specified in the schedule; there were others the production of which was not pressed on the part of the applicant. Otherwise production was sought and opposed. 12 Senior counsel appearing for the Commonwealth stated its objection to production as, firstly, the absence of any demonstrated legitimate forensic purpose in the applicant in seeking production; and secondly, what he described as "public interest privilege". To support the Commonwealth's latter claim, he provided to Blackmore DCJ a "confidential affidavit" and "confidential submissions". The same material was placed before this Court. In both Courts reliance was placed by the Commonwealth on s130 of Evidence Act 1995 (Cth). 13 His Honour stated that he would not read these documents unless satisfied that the applicant could demonstrate a legitimate forensic purpose and counsel for both the Commonwealth and the applicant accepted that as a correct approach. There followed a good deal of discussion, extending over twenty-two pages of transcript, concerning the use the applicant might wish, or be able, to make of the material sought. This was directed to whether the applicant had established, or was able to establish, that he had a "legitimate forensic purpose" in seeking access to the documents. This argument took place in the context of a trial that had proceeded for six days, before the judge presiding over the trial. It is obvious that the participants in that debate were more familiar than this Court with the facts and circumstances by which the applicant might, or might fail to, establish a legitimate forensic purpose. It is largely incomprehensible to me. In any event, while not expressly so ruling, his Honour appears to have accepted that the applicant had discharged the onus of establishing a legitimate forensic purpose in seeking the material, because he proceeded to hear argument on the question of "privilege", and to read the proffered confidential materials. He then delivered a judgment upholding the Commonwealth's claim. He gave as his reason: "According to s130 of the Evidence Act I uphold the claim for public interest immunity made by the respondent to a subpoena issued by Mr Francis to the Australian Customs Service …" 14 In pursuing the application the applicant is in an obviously awkward position. He has not had access either to the confidential affidavit or to the confidential submissions which were before his Honour and before this Court. He therefore has no direct knowledge of the basis on which the claim under s130 was put. The judgment tells him nothing other than that it was upheld. 15 S130 of the Evidence Act is in the following terms: " Exclusion of evidence of matters of state (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. " 16 In my opinion, reliance on s130 is misconceived. S130 is directed to the admission into evidence of information or a document. Production of documents or other items on subpoena is far removed from (although sometimes preliminary to) admission into evidence: Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia [1999] HCA 67; 201 CLR 49. The claim for privilege is to be determined by reference to common law principles. Those principles may be briefly stated. Production will not be required of documents, although relevant and otherwise admissible, if it would be injurious to the public interest to disclose them: Sankey v Whitlam (1978) 142 CLR 1 at 38, per Gibbs ACJ. Put another way, the relevant question is: "… would the public interest be best served and least injured … by compelling or by refusing to compel disclosure to the Court of the information and of the documents sought by the subpoena?" ( Alister v The Queen (1984) 154 CLR 404 at 453, per Brennan J.) 17 In both of these cases it was recognised that, when such an issue arises, the court is required to consider two conflicting aspects of the public interest, those being harm done by the production of the documents against the fair and efficient administration of justice: see Alister, p 412, per Gibbs CJ. 18 It is essential to the application of the principles that the documents or evidence involved relate to the conduct of governmental functions: R v Young [1999] NSWCCA 166; 46 NSWLR 681. Here, there is no question but that the documents sought fall into that category. 19 It is open to the court itself to inspect the documents in order to make the necessary evaluation: Alister, p 416, p 431, p 453. 20 Both Blackmore DCJ and all members of this Court did inspect the documents confidentially produced. 21 After hearing some argument in open court, the court was closed in order to allow a more frank discussion of the matters deposed to in the affidavit and in the written submissions. The applicant and his legal representatives, together with the Crown Prosecutor in the trial, his junior and his instructing solicitor, were excluded from this procedure. That part of the procedure was recorded in a separate transcript. 22 Senior counsel who appeared for the Commonwealth urged that, in the event that this Court upheld the Commonwealth's claim and dismissed the appeal, it should give no reasons for its decision. I would reject this submission in the wide terms in which it was framed. I accept that it would be inappropriate, in giving reasons for a decision, whether in favour of or against the applicant, to disclose any material as to which confidentiality is sought. That does not mean that no explanation can be given. 23 In the absence of informed argument on behalf of the applicant, it is difficult for this Court to evaluate the importance to the applicant's case of the material which it has read. I would merely observe that it is not readily apparent to me that the documents have any significance or importance that would assist in the resolution of the issues of the trial, as they have been explained to us; certainly they give no indication, on their face, that they would afford any assistance to the applicant. I say that, however, conscious that this Court is not fully aware of the detail of the prosecution allegations, the applicant's responses to them, or the evidence to be adduced. It is entirely possible that, contained in the documents, is some information that may have a bearing on some aspect of the prosecution case, or the defence response, or one or more of the witnesses on whom the prosecution will rely. There may be significance in the documents lost upon members of a court who do not have access to the contents of counsels' briefs. 24 Before proceeding to the balancing exercise required by the application of the authorities to which I have referred, I would mention one other curious feature of this proceeding. The application before this Court is an application pursuant to s5F of the Criminal Appeal Act for leave to appeal against what was, essentially, a discretionary decision. (I say it is discretionary because Blackmore DCJ purported to exercise a discretion under s130 of the Evidence Act. The correct exercise, in my view, was a balancing exercise, weighing the two conflicting aspects of the public interest, which, of itself, is not, but is analogous to, a discretionary judgment. In any event, the determination to set aside a subpoena on that basis is, in essence, a discretionary decision.) 25 Ordinarily, an applicant for leave to appeal under s5F would be required to establish error in the process undertaken by the primary judge, in the sense explained in House v The King (1936) 55 CLR 499. Here, it was accepted by the Commonwealth that the absence of reasons and the withholding of the factual basis for the claim from the applicant and his legal advisers rendered that requirement inappropriate. In practical terms, it is necessary that this Court perform its own evaluation task and exercise its own discretion independently of what was done by the primary judge. 26 I have read the confidential affidavit. Its contents are persuasive. It establishes (so far as an untested affidavit may do so) that more harm would be done to the public interest by disclosure of the material sought than would be done to the administration of justice by its being withheld. It would be inappropriate to say more than that. In reaching that conclusion, I have been influenced by the absence of any obvious usefulness of the material to the applicant in his defence of the charge. I make that comment, with reservations as outlined above. 27 In my opinion, leave to appeal the decision of Blackmore DCJ should be granted, but the appeal should be dismissed.

Last Modified: 04/14/2004 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.