R v Sparos

[2018] NSWSC 712

Supreme Court of NSW|2018-05-14|Before: Harrison J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2018-05-14

Before

Harrison J

Catchwords

[1984] HCA 85 Attorney General (NSW) v Kaddour & Turkmani [2001] NSWCCA 456 Attorney General (NSW) v Lipton (2012) 224 A Crim R 177
[2006] NSWCCA 190 Obeid v Ipp (2012) 224 A Crim R 177

Source

Original judgment source is linked above.

Catchwords

[1984] HCA 85 Attorney General (NSW) v Kaddour & Turkmani [2001] NSWCCA 456 Attorney General (NSW) v Lipton (2012) 224 A Crim R 177[2006] NSWCCA 190 Obeid v Ipp (2012) 224 A Crim R 177

Judgment (10 paragraphs)

[1]

Judgment

HIS HONOUR: On 14 February 2018, Mr Sparos caused a subpoena for production to be issued to the Commissioner of the NSW Police Force. Paragraph 4 of the subpoena for production requests production of: "Copies of all notes prepared by Detective Mr Dipple and another unidentified detective, who attended upon Witness E whilst he was incarcerated at the Long Bay Hospital Correction Centre after Maika was killed. (As referred to in paragraph 10 of Witness E's Statement dated 31 August 2017)."
On 24 April 2018, the Commissioner produced a redacted version of a document known as IN264 to Mr Sparos. This document is a contemporaneous record of an interview with Witness E.
By notice of motion dated 27 April 2018, the Commissioner seeks to set aside paragraph 4 in part, to the extent that the Commissioner not be required to produce further documents or parts of documents that might be caught by the paragraph upon the ground that there is no discernible legitimate forensic purpose to require production of such material. Alternatively, the Commissioner argues that the document caught by paragraph 4 is subject to a claim for public interest immunity.
The Commissioner's notice of motion is supported by an affidavit of Karen Leanne Webb, the Assistant Commissioner of Police, Transport and Public Safety Command, sworn on 24 April 2018 as well as her confidential affidavit of the same date and a confidential affidavit of Kyle Stewart, the Acting Assistant Commissioner, Commander of Major Events and Incidents Group, sworn on 31 May 2016.

[3]

Public interest immunity

Section 130 of the Evidence Act 1995 relevantly provides: "130 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: … (c) prejudice the prevention, investigation or prosecution of an offence, 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 … (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."
Section 130 closely reflects the common law governing public interest immunity: Eastman v R (1997) 76 FCR 9 at 63; State of New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60 at [43]; Ryan v Victoria [2015] VSCA 353 at [58].
In Alister v The Queen (1984) 154 CLR 404; [1984] HCA 85 at 412, Gibbs CJ stated the test for determining public interest immunity claims as follows: "[W]hen one party to litigation seeks the production of documents, and objection is taken that it would be against the public interest to produce them, the court is required to consider two conflicting aspects of the public interest, namely whether harm would be done by the production of the documents, and whether the administration of justice would be frustrated or impaired if the documents were withheld, and to decide which of those aspects predominates. The final step in this process - the balancing exercise - can only be undertaken when it appears that both aspects of the public interest do require consideration - ie, when it appears, on the one hand, that damage would be done to the public interest by producing the documents sought or documents of that class, and, on the other hand, that there are or are likely to be documents which contain material evidence. The Court can then consider the nature of the injury which the nation or the public service would be likely to suffer, and the evidentiary value and importance of the documents in the particular litigation."
Although Alister predates the enactment of s 130, its statement of the process for determining public interest immunity claims remains applicable: see Obeid v Ipp [2015] NSWSC 1755 at [21]; Attorney General (NSW) v Lipton (2012) 224 A Crim R 177; [2012] NSWCA 156 at [39].
In making a determination under s 130(1), the Court is to have regard to the matters referred to in s 130(5).
The Court may also "inform itself in any way it thinks fit": Evidence Act, s 130(3). In Attorney General (NSW) v Kaddour & Turkmani [2001] NSWCCA 456 at [20], Sully J said: "His Honour was entitled to have full regard to what was said in the various Confidential Statements; and to take the contents of those Statements fully into account without disclosing in any way or to anybody the contents of the Confidential Statements."
Accordingly, I have read and taken into account the contents of the unredacted document known as IN264 and the confidential affidavits supporting the Commissioner's notice of motion.

[6]

The consequences of disclosure

Witness E is a police informer. As the authorities make clear, the Court will ordinarily give substantial weight to the need to protect confidential sources of information: Gardiner v R (2006) 162 A Crim R 233; [2006] NSWCCA 190 at [98]-[99]; R v Abdullah [1999] NSWCCA 188 at [20]-[24].
The reasons for this are explained in Attorney General for New South Wales v Smith (1996) 86 A Crim R 308 at 311 where Gleeson CJ, Clarke and Sheller JJA said: "The rationale for this form of public interest immunity is that, if it were not extended, sources of information would dry up and the prevention and detection of crime would be hindered".
Similarly, in Attorney General (NSW) v Lipton at [38], Basten JA explained that: "In practice, informers fall into different categories, as do the threats attendant upon disclosure. Each case must depend, to a certain extent, upon its own facts, although the importance of maintaining trust in the ability of a police force to offer protection to informers is a consideration of general application."
Further, any statements made to the police which may have identified persons as witnesses or suspects in relation to matters other than those which are the subject of the current proceedings are "indisputably covered" by public interest immunity: Attorney General for New South Wales v Stuart (1994) 34 NSWLR 667 at 680-681. This necessarily flows from the public interest in the need to protect ongoing or future criminal investigations from being impeded or wholly frustrated: Evidence Act, s 130(4)(c); Attorney General for New South Wales v Stuart at 675; Beneficial Finance Corporation Ltd v Commissioner of Australian Federal Police (1991) 51 A Crim R 423 at 436-438.
Having regard to the contents of the confidential affidavits, I am satisfied that there are significant concerns for the safety of Witness E should this document be disclosed to Mr Sparos. The fact that the identity of Witness E is known to him does not alter this. In any event, I am also satisfied that there are or may be significant operational concerns that go beyond the protection of Witness E.

[8]

The balancing exercise

In the present circumstances, the balance is overwhelmingly in favour of upholding the Commissioner's public interest immunity claim. The public interest in preserving the confidentiality of both Witness E and the information provided to the police outweighs the importance of disclosure to Mr Sparos.
Considering the limited utility of the evidence, I am also satisfied that the Mr Sparos' right to a fair trial will not be impeded by the non-disclosure of IN264.
Finally, Mr Carroll suggests that if the Commissioner is concerned about the safety of the individuals identified by Witness E, those names could be redacted. In my view, such an approach would not be appropriate as the sensitive nature of the information extends beyond the names of the people who are mentioned. Nor do I think it would be appropriate to provide the document confidentially to the legal representatives of the parties. As noted by Davies J in Obeid v Ipp at [28]-[29]: "[28] Different considerations seem to me to apply where the physical safety of a person is concerned. With the best will in the world, the more people who know of a matter the more chance there is for the disclosure of some aspect of the information which can then be linked to other known information that might ultimately result in the safety of the person sought to be protected being compromised. [29] In Hilton v Wells (1985) 15 A Crim R 418; 5 FCR 296 Wilcox J said at 429: Without reflecting in any way upon the integrity of any counsel or solicitor, difficulties are likely to arise where counsel appearing in, and advising their clients in respect of, protracted and complex proceedings acquire information which they are not free to use or to pass on to their clients. During the heat of battle an unwitting disclosure may occur. Frank and full advice becomes impossible. I am aware of cases in which, for reasons such as these, experienced counsel have declined to receive information which they are not free to share with their clients. It seems to me merely common sense to conclude that the fewer people who have access to confidential information the less is the risk of unauthorized disclosure."
Accordingly, I am not satisfied that there are any appropriate means of addressing these concerns should the document be disclosed to the parties or to their legal advisers: Evidence Act, s 130(5)(d).

R v Sparos

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Judgment (10 paragraphs)

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