Mr BG Page (Crown)
Mr N Steel (Accused)
Mr DK Jordan (New South Wales Commissioner of Police)
Source
Original judgment source is linked above.
Catchwords
[2008] HCA 4
R v Francis (2004) 145 A Crim R 233Mr BG Page (Crown)
Mr N Steel (Accused)
Mr DK Jordan (New South Wales Commissioner of Police)
Judgment (2 paragraphs)
[1]
Judgment
JOHNSON J: By Notice of Motion dated 16 November 2021, the New South Wales Commissioner of Police ("the Commissioner") seeks orders pursuant to ss.130(1) and 131A Evidence Act 1995, that the Commissioner be excused from producing documents, or parts thereof, in response to a subpoena issued on behalf of the Accused on 12 November 2021 on the basis of public interest immunity or, alternatively, on the basis of the common law principles of public interest immunity.
The Accused, Marko Krivosic, is standing trial on a charge of murder, with that trial having commenced with the empanelment of a jury on Monday, 15 November 2021.
In support of the claim for public interest immunity made by the Commissioner, the Court has been provided with an open affidavit of Assistant Commissioner Stacey Maloney dated 16 November 2021. The Court has had regard to that affidavit which is available to the legal representatives for the Crown and the Accused.
In the open affidavit of Assistant Commissioner Maloney, reference is made to confidential Exhibit SM1 and confidential Exhibit SM2. The Court has been provided with confidential Exhibits SM1 and SM2 and has examined them in accordance with the usual practice where a claim of this type is made.
In addition, Assistant Commissioner Maloney has sworn a confidential affidavit of 16 November 2021 which has been read by the Court, but of course, is not available to the parties.
Written submissions have been furnished by counsel for the Commissioner and by counsel for the Accused, and they are of assistance in the determination of the matter. The written submissions for the Commissioner comprise open submissions which are available to the parties and confidential submissions which are only to be examined by the Court, once again in accordance with usual practice.
The practice adopted with respect to the confidential material is well recognised: R v Meissner (1994) 76 A Crim R 81 at 84-85.
Given the subject matter of the claim, it is necessary for the Court to express itself in general terms in this open judgment in a manner which maintains confidentiality of the material which is the subject of the claim: R v Francis (2004) 145 A Crim R 233; [2004] NSWCCA 85 at [31]; Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532; [2008] HCA 4 at [185].
In receiving a confidential affidavit and examining confidential exhibits and a confidential submission, the Court is acting on the ability to inform itself in any way it thinks fit for the purpose of s.130(3) Evidence Act 1995: Attorney General (NSW) v Kaddour and Turkmani [2001] NSWCCA 456 at [20].
The subpoena which has attracted this claim was issued on behalf of the Accused on 12 November 2021. The subpoena was issued following disclosure by the Crown on 11 November 2021 of certain material which was accepted as being disclosable material, but which was to be the subject of a public interest immunity claim. Accordingly, the legal representatives for the Accused were informed that there was some material which the Crown classified as disclosable material, but where the substance of the material could not be disclosed because of the intended claim of public interest immunity.
Understandably in those circumstances, the legal representatives for the Accused brought the matter to a head by the issue of a subpoena. The Court granted short service and the subpoena was returnable on Monday, with the argument as to public interest immunity scheduled to take place today.
The Court has received the material to which reference has been made, as well as short oral submissions on the application.
The written submissions on behalf of the Commissioner and the Accused summarise helpfully the legal principles to be applied. Section 130 Evidence Act 1995 constitutes the statutory form of a claim of public interest immunity. However, as the authorities have recognised, there is a significant and substantial overlap between s.130 and common law principles: State of New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60 at [42]ff.
The claim of public interest immunity in this case is based upon the informer principle: Cain v Glass (No 2) (1985) 3 NSWLR 230 at 247; Director of Public Prosecutions v Smith (1996) 86 A Crim R 308 at 311.
The authorities make clear that there is a balancing exercise to be undertaken for the purpose of considering a claim of public interest immunity under s.130: Attorney General (NSW) v Lipton (2012) 224 A Crim R 177; [2012] NSWCCA 156 at [39].
The Court has inspected the material in this case to allow a direct assessment of the claim and to undertake the necessary balancing exercise.
In determining the application, I have had regard to my own knowledge of the subject matter of the trial. We are in the third day of the trial and I have acquired some reasonable understanding of the issues and have taken that into account as part of the balancing exercise.
For reasons explained earlier in this judgment, it is necessary for the Court to speak in a broad and indirect way because of issues of confidentiality.
It can be said that the material which is the subject of the claim is relatively brief. In undertaking the necessary balancing exercise, a number of features are pertinent. The document in question is unsigned and the content of it, in my view, would only be helpful to the prosecution. The prosecution is not seeking to adduce this evidence. Insofar as the balancing exercise involves an assessment as to whether the material may be of assistance to the Accused, I do not consider that it would assist the Accused at all and it would, if anything, add to the inculpatory evidence against the Accused.
The charge against the Accused is, of course, a very serious one which carries a maximum penalty of life imprisonment, and that is an important factor in the balancing exercise to be undertaken.
I have had regard, as well, to the fact that there is no evidence that the substance of the information contained in the document has already been published.
This is not a case where the material, in my view, would be of any material assistance to the Accused.
Having undertaken the balancing exercise, I have reached the clear view that the balance lies in favour of non-disclosure. I observe that the examination of factors considered as part of the balancing exercise (at [19]-[21]) above were noted in the confidential submissions of counsel for the Commissioner as being appropriate to be disclosed in an open judgment. In my view, the approach of counsel for the Commissioner is correct in this respect. There is a reasonable expectation that some understanding of the Court's ruling ought be made known to the parties, including the Accused and his legal representatives. A line must be drawn, of course, beyond that.
As presently advised, I do not see any utility in the preparation of a confidential judgment which would contain a more detailed examination of the matters the subject of the claim. Of course, if a confidential judgment was prepared, it would not be provided to the parties, it would only be provided to the Commissioner and his representatives to be retained as against the possibility of the need for future reference.
In a sense, the material which the Court has before it, taken on its own, is sufficient to explain the decision of the Court in the future, if such a step was required. The Court is prepared to provide a confidential judgment, but I do not see a present need for it unless such a request is made.
I note that a redacted version of one document has been provided to the parties (MFI10). That document is, of course, almost entirely redacted, so it is not informative.
For these reasons, I make an order pursuant to ss.130(1) and 131A Evidence Act 1995 excusing the Commissioner from producing documents in response to the subpoena issued on behalf of the Accused on 12 November 2021 on the basis of public interest immunity.
I note that MFI10 has been produced, but the claim is upheld with respect to all other documents caught by the subpoena.
[2]
Amendments
14 December 2021 - Publication status amended
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: 14 December 2021