R v Zhong [2001] VSC 521

Supreme Court of Victoria|2001-10-08|Before: Flatman J

CRIMINAL LAW RULING - Ex-Parte Application to set aside subpoena to produce documents

Kay Robertson, Solicitor for Solicitor of Public Prosecutions

Ms Dixon argues that an overview of all of the conversations between the accused and the undercover operative, Mark James, and the evidence of the accused on the voir dire, raises two potential areas of relevance.

Firstly, in an application to exercise my discretion to stay proceedings because of improper behaviour by the police or agents of the police in inducing or pressuring the accused to become involved in a crime and, secondly, as part of the defence case the accused was never committed to an intention to incite the undercover operative to kill his wife, and the prelude to the dealings with Mark and the conversations with Paul are relevant to understand the full context.

Mr Silbert, for the Chief Commissioner, argued that the information should not be disclosed on the grounds of public interest immunity and to the particular need to protect informers well recognised in the law. See Cain v Glass[1] and Signorotto v Nicholson.[2] It was common ground that the matters to be considered are well established: See Alister's case[3], Signorotto v Nicholson and Jarvie and Anor v The Magistrates' Court of Victoria[4] and Meissner.[5]

In Alister's case the High Court recognised that the inspection of documents for which public interest immunity is claimed will often be of assistance to the court, and I was invited by all parties to consider the material in an ex-parte application by Mr Silbert. I was also invited to listen to the tapes involving the conversation between the accused and the undercover operative, Mark James. It is clear from the authorities that the court must engage in a balancing exercise which involves, in each case, weighing the public interest that harm would be done by the production of the documents against the public interest that the administration of justice would be frustrated if the documents were withheld, and then deciding which public interest predominates. In particular, see the passage in Alistair at p.412 by Gibbs, CJ.

The court must first identify a category of public interest involving injury to the public service which requires suppression. In this case, Mr Silbert relies on the long established law requiring the protection of police informers and that the disclosure of such information might lead to retribution, the drying up of sources of important and valuable information and moreover that that disclosure might impede effective police functioning and law enforcement. The second task is to identify the public interest requiring disclosure. Here, the test has been variously described in Alister, Jarvie and Meissner, and in particular, in Cerrah v The Queen[6], by Vincent, J. Namely that the accused must demonstrate that the evidence is at the very least capable of being, if not likely to be, of some real assistance to him in answering the case made out against him.

Having inspected the documents and heard further evidence in the ex-parte application and listened to all the tapes of the conversations between the accused and the undercover operative, Mark, I am satisfied that there is clearly an issue of public interest immunity in relation to the person identified as Paul. I am satisfied that the disclosure of the information could lead to the identification of an informer and place him at risk of retribution; it would undermine the confidence of both the informer and others who become aware of it.

It would also undermine confidence in the protection and security such people could expect from the police. It is strongly in the public interest that these sources of information do not dry up and that police not be hindered in their duty to detect or prevent crime. I am satisfied that harm would be done by the production of the information in relation to Paul.

Applying the test set out in Jarvie and Alister, I am also required to consider whether the administration of justice would be frustrated or impaired if the documents were withheld. Having considered the material presented before me in the application, I am satisfied that, rather than being capable of assisting the defence, the material would be of assistance to the Crown.

I am therefore satisfied that the public interest in not disclosing the information clearly predominates.

The position of the person referred to as Di is not as easy to resolve. She is an undercover operative and to some extent attracts the same prima facie protection as an informer: See Jarvie. However, the material contained in tape-recordings of her conversations with the accused do not reveal her identity, nor do they disclose any particular modus operandi not already disclosed in conversations between the accused and the undercover operative, Mark James. Attendance at court would increase her exposure and lessen her value as an undercover operative, but the production of the recordings does not necessarily lead to that outcome. Whether or not the material is capable of assisting the defence is a difficult question to resolve, as often evidence of this kind can be two edged. However, there is an argument that the evidence is capable of assisting the accused, which must be weighed in the balancing process. Given the limited nature of the material, in that it does not identify or expose the undercover operative, I am satisfied that the tapes, transcript and information reports from Di involving her conversations with the accused should be produced.

I direct that save for the tape-recordings, transcripts and information reports by the person known as Di, that the subpoena be set aside.

I should add that the subpoena also sought material relating to an undercover operative referred to as Dave Perry. I understand that material has been provided, and that is not being pursued in this application.

[6] Unreported Court of Criminal Appeal, 6 October 1988

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