"Counsel:" Prosecution: T. Riley QC Defence: C. McDonald QC

"Solicitors:" ""Prosecution: Australia Government Solicitor Defence: NT Legal Aid Commission

On 5 March 1997 I ruled on an application by Mr Riley QC that I would receive certain confidential affidavits. The application by Mr Riley QC was opposed by Mr McDonald QC who appeared for the accused Hartoyo Rusmanto. I stated I would subsequently provide reasons for my ruling which I now publish.

The accused, Hartoyo Rusmanto, has issued a number of subpoena seeking documents from the Commissioner of the Australian Federal Police, the Commissioner for Police in the Northern Territory, the Combined Drug Enforcement Unit, the Chairman of the National Crime Authority and the Drug Enforcement Agency in New South Wales.

Alan John Sing, a federal agent of the Northern Region Head Office of the Australian Federal Police, has sworn an affidavit dated 18 December 1996, in which he objects to the production or inspection of documents listed in Schedules 3A, 3B, 3C and 3D and Schedule NI.

Alan John Sing has sworn a further affidavit dated 18 December deposing to the fact that the Australian Federal Police contend that the documents listed in Schedule NI fall within a class or classes of documents which are privileged from production or inspection on grounds of public interest immunity.

The broad basis of the objection in respect of the schedules to both affidavits are as follows: (1) The accused has not established a legitimate forensic purpose for the production and inspection of the documents.

(2) Disclosure of the material would identify techniques and technical means of investigation and surveillance which could thwart or jeopardise investigation of serious criminal offences in Australia and overseas.

(3) Would disclose material concerning ongoing and further investigations into persons other than the accused and the persons the subject of such further investigation could be made aware of the investigation and take action to avoid detection.

(4) Would disclose material concerning operational communications and materials derived from liaison between the Australian Federal Police and other State, Territory, Federal and foreign law enforcement agencies which would result in a loss of trust in such confidentiality and jeopardise ongoing liaison and operational communications.

(5) Disclosure of the material would identify informants and prejudice the safety of the informant or his family. 6. Mr Riley QC, on behalf of the Australian Federal Police, sought to put forward on a confidential basis a further affidavit sworn by Alan John Sing on 27 February 1997. An affidavit of Graham Edmund Schuberg sworn 31 October 1996 and annexure marked PJL3 to the affidavit of Peter John Lamb sworn 25 February 1997.

His application is supported by Mr Hunter who appeared for the Commissioner for Police in the Northern Territory.

Mr McDonald QC objects to this course on the grounds that it is a breach of natural justice to the accused if he and his legal counsel are not permitted to read such affidavit material.

Mr McDonald QC submitted that to receive such confidential affidavits is in this instance unnecessary because the accused has no interest in the names of informers or the other information under the broad objections raised in the claims for public interest immunity. Mr McDonald QC further argued that to receive confidential affidavits is incompatible with the Judge's performance of his or her judicial functions or with the proper discharge by the judiciary of its responsibilities as an institution exercising judicial power. Further, that to receive affidavits on a confidential basis gives the appearance of a link between the executive and the court in an impermissible way and this affects the independence of the judiciary ( Wilson and Others v Minister for Aboriginal and Torres Strait Islander Affairs and Another [1996] HCA 18; (1996) 138 ALR 220; Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 138 ALR 577; Grollo v Palmer and Others [1995] HCA 26; (1995) 184 CLR 348).

I do not accept the defence arguments. There is no dispute that it is appropriate for the Judge alone to inspect some or all of the documents the subject of the claim for public interest immunity provided the defence show a legitimate forensic purpose ( R v Saleam (1989) 16 NSWLR 14 at 19; Attorney General for NSW v Stuart (1994) 34 NSWLR 667 at 681; Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1 at 38 & 39). The Judge will then decide whether such documents should be released for inspection to the defence or whether they should be withheld on the ground of public interest immunity. The purpose of the confidential affidavit is to explain more fully the claim for public interest immunity in circumstances where the explanation if made public would itself threaten the public interest for the protection of which immunity is claimed (see Commissioner of Australian Federal Police v Poompiriyapinte , unreported decision of the Supreme Court of New South Wales, Common Law Division, delivered 28 August 1990, Badgery-Parker J).

I am satisfied that the defence have established a legitimate forensic purpose for inspecting the documents.

Whilst I feel considerable reluctance about receiving confidential affidavits I have decided that it is appropriate to do so in this matter. On the authorities to which I have been referred, the receiving of confidential affidavits is part of the well established procedure that it is for a Judge alone to decide which documents, over which there is a claim for public interest immunity, will be made accessible to the defence for inspection.

I apply the principle expressed by the New South Wales Court of Criminal Appeal in Regina v Bebic & Ors (unreported) delivered 27 May 1982 at p5: "Mr Mason tendered an affidavit in support of his claim for privilege. He submitted, however, that the affidavit should not be placed on the file, that is to say that it should be read only by the Court and not disclosed to the party calling on the footing that the contents of the affidavit would or might themselves compromise the claim for privilege.

We had and we still have some doubts about the propriety of restricting the affidavit in the way proposed. However, it may well be that that course is, in certain cases, of which this is one, no more than a logical extension of the established practice of the Courts inspecting the allegedly privileged documents itself. See Conway v Rimmer [1908] A.C. 910, and Sankey v Whitlam [1978] HCA 43; [1978] 142 CLR 1." and at p6:

"It seems to us that granted that it is now commonplace for Judges to make a private inspection of documents in order to resolve a claim for privilege (see Conway at 979 and 995-6 and Sankey at 65) it follows that in a proper case the Judge may similarly keep to himself the affidavit by which the claim is supported. It is a question of public interest which is to be decided separate from the lis (sic) between the principal antagonists, in which, in the present case, the party answering the subpoena is not involved." 14. This course was approved by Foster J in the Federal Court of Australia ( Peter D. Gould v John Chai Nam-Yung [1989] FCA 477; (1989) 46 A Crim R 1 at p9).

15. Confidential affidavits were examined and relied on both by the trial Judge and the Judges of the New South Wales Court of Criminal Appeal in the matter of Joseph Ladislaus Meissner (1994) 76 A Crim R 81 at 85. These confidential affidavits were not made available to the legal representatives for the parties. See also Haj Ismail & Ors v Madigan & Ors [1982] FCA 231; 45 ALR 379.

16. In Director of Public Prosecutions v Arthur Stanley Smith; Attorney General for the State of New South Wales & Others v Arthur Stanley Smith & Ors an unreported decision delivered on 2 May 1996, the Court of Criminal Appeal of the Supreme Court of NSW in addition to other orders made the following: "5. Order that the confidential affidavits tendered in the said proceedings before Magistrate O'Shane and Mr Justice Hulme remain confidential until further order of this court." 17. I considered that this was an appropriate matter in which to receive confidential affidavits and for the reasons stated above I ruled accordingly.