The duty of disclosure and public interest immunity
83Much time was spent in argument on the question whether the primary judge's orders impermissibly impinged upon what was said to be, in effect, the conventional practice for dealing with public interest immunity claims.
84Public interest immunity is a doctrine of substantive law. It represents a fundamental immunity. It allows for the withholding of documents in a variety of circumstances where disclosure of the documents would harm the public interest. The balancing process applied in determining whether a claim for public interest immunity should be upheld requires that the public interest in confidentiality must be weighed against the public interest in disclosure: Whealy J in R v Baladjam (No 31 ) [2008] NSWSC 1453 (at [29]) applying Jacobsen v Rogers [1995] HCA 6; (1995) 182 CLR 572 (at 588 - 589). Section 130 of the Evidence Act invokes the same two stage process of analysis as the common law: State of New South Wales v Public Transport Ticketing (at [42] - [43]) per Allsop P (Hodgson JA and Sackville AJA agreeing).
85Public interest immunity is not a privilege, which may be waived by the Crown or by any party: Air Canada v Secretary of State for Trade (No 2) [1983] 2 AC 394 (at 436) per Lord Fraser; Cross on Evidence , LexisNexis, (at [27005]). A judge (or any litigant or witness) may raise the question whether a claim for public interest immunity should be made in relation to documents even if no objection on that basis is taken: Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1 (at 44) per Gibbs ACJ; (at 58 - 59) per Stephen J.
86However there is a substantial body of law which supports the proposition that where the prosecution is aware of material which would, or would possibly, be relevant to an accused's defence but is subject to a claim of public interest immunity, that fact should be disclosed to the accused.
87In R v Ward [1993] 2 All ER 577; [1993] 1 WLR 619, to which Hodgson JA referred in Reardon (No 2) (at [47]), the Court of Appeal (Glidewell, Nolan and Steyn LJJ) held (at 632) that the prosecution's duty at common law to disclose to the defence all relevant material required the police to disclose to the prosecution all witness statements and the prosecution to supply copies of such witness statements to the defence or to allow them to inspect the statements and make copies unless there were good reasons for not doing so. It also held that if the prosecution in a criminal case wished to claim public interest immunity for documents which would be helpful to the defence they were obliged to give notice thereof to the defence so that if necessary the court could be asked to rule on the matter. The Court accepted that it would be incompatible with a defendant's absolute right to a fair trial to allow the prosecution, who occupy an adversarial position in criminal proceedings, to be judge in their own cause on the asserted claim to immunity. Their Honours said (at 633):
"Policy considerations therefore powerfully reinforce the view that it would be wrong to allow the prosecution to withhold material documents without giving any notice of that fact to the defence. If, in a wholly exceptional case, the prosecution are not prepared to have the issue of public interest immunity determined by a court, the result must inevitably be that the prosecution will have to be abandoned."
88Their Honours also held (at 633) that nothing in the Attorney General's guidelines for the disclosure of "unused" material to the defence in cases to be heard on indictment (see Practice Note (criminal evidence: unused material) [1982] 1 All ER 734) "could derogate in any way from the[se] legal rules".
89In R v Davis [1993] 2 All ER 643; [1993] WLR 613, to which Hodgson JA referred in Reardon (No 2) (at [47]), the Court of Appeal (as Hodgson JA said), upheld and elaborated on R v Ward . In particular, the Court of Appeal (Lord Taylor of Gosforth CJ, Owen and Curtis JJ) said (at 648):
"The effect of R v Ward is to give the court the role of monitoring the views of the prosecution as to what material should or should not be disclosed and it is for the court to decide. Thus, the procedure described as unsatisfactory in R v Ward , of the prosecution being judge in their own cause, has been superseded by requiring the application to the court. This clearly gives greater protection to the defence than existed hitherto - indeed as much protection as can be given without pre-empting the issue. Although ideally one would wish the defence to have notice of all such applications, and to have sufficient information to make at least some representations, we recognise that, in a small minority of cases, the public interest prevents that being possible."
90In R v Keane , to which Hodgson JA referred in Reardon (No 2) (at [48]), in addition to the matters his Honour noted, the Court of Appeal (Lord Taylor of Gosforth CJ, Auld and Mitchell JJ) emphasised (at 483) that "ex parte applications are contrary to the general principle of open justice in criminal trials" and should not be adopted, save on the application of the Crown and only for the specific purpose of enabling the court to discharge its function in testing a claim that public interest immunity or sensitivity justifies non-disclosure of material in the possession of the Crown.
91As Hodgson JA pointed out ( Reardon (No 2) (at [52])) the few Australian cases that have commented on the English cases have not suggested they are not applicable in Australia. Of those cases, Easterday v R [2003] WASCA 69; (2003) 143 A Crim R 154 (at [194] ff, [390]), in particular, contains an extensive discussion by Steytler J (with whom Scott and Roberts-Smith JJ agreed) of the Crown's obligation of disclosure in the context of ensuring the right of an accused to a fair trial and the consequences of non-disclosure by the Crown.
92In R v Solomon [2005] SASC 265; (2005) 92 SASR 331 the accused complained on appeal, following his conviction by a jury of five counts of taking part in the sale of cocaine contrary to s 32(1)(d) of the Controlled Substances Act 1984 (SA), that incomplete disclosure by the prosecution led to a situation in which it came out before the jury that there was additional surveillance material about him and also led to his counsel asking questions in cross-examination of a police officer, which it was suggested, would not have been asked had complete disclosure been made.
93It emerged that the prosecutor had not been told by the police officers responsible for the investigation of the offences of the full extent of the surveillance of the accused and of others with whom he had contact. The consequence was that although a request was made to the Director for disclosure of all surveillance material, complete disclosure had not been made. Production of the material relevant to these issues had been sought by subpoena and again a claim of public interest immunity had been upheld: R v Solomon (at [104], [106], [111]).
94Doyle CJ (with whom Duggan and Sulan JJ agreed) said, in a passage not essential to his reasons:
"112 It is not clear that the police breached their duty of disclosure. But I would have thought that, without undermining the claim of public interest immunity, a means could and should have been found of informing the defence that the question should not have been asked."
95His Honour concluded (at [115]) that there was no risk of a miscarriage of justice having arisen from what occurred, but added:
"116 What happened in this case illustrates the importance of the police complying with their duty to ensure that the Director of Public Prosecutions is in a position to make appropriate disclosure to the legal representatives of the accused . It is not appropriate for the investigating officers, or their superiors, to make a decision that potentially relevant and disclosable material will not be disclosed, because there are or may be grounds for resisting that disclosure. That is a decision that should be made by the Director . If the Director makes that decision, the Director can then consider whether anything, and if so what, should be done to inform the legal representatives of the accused that there is material that is being withheld. What happened in this case illustrates the dangers associated with a failure by the police to provide the Director with all the information which should be provided. Almost at the end of the case counsel asked questions, based on the assumption of full disclosure, that could have led to answers causing a miscarriage of justice, and the need for the whole case to be heard again. The interests of justice, and the public interest in the efficient disposition of cases before the court, combine to require careful attention by the police to their duty to inform the Director adequately of all material that might have to be disclosed, leaving it to the Director to decide whether there are good grounds for withholding any material, and what should be done in that event ." (Emphasis added)
96In 2005 the Director of Public Prosecutions Act 1991 (SA) was amended to insert s 10A, subsection (a) of which is in substantially the same terms as s 15A of the DPP Act. Section 10A(3), however, expressly provides that the duty of disclosure under s 10A(1) "extends to material that would be exempt from production in court because it is protected by privilege or for any other reason". The amendment followed a long process of criminal-justice process reform explained in the second reading speech to the Statutes Amendment (Criminal Procedure) Act Bill which effected the amendment: South Australia House of Assembly, Parliamentary Debates (Hansard), 20 September 2005 (at 3465 ff). It is unnecessary to recount that history. In short, the amendment was effected independently of Doyle CJ's reasons in R v Solomon .
97The practice Doyle CJ recommended in R v Solomon appears to have been adopted in South Australia: see R v Andrews [2010] SASCFC 5; (2010) 107 SASR 471 per Gray J (with whom Vanstone J agreed). In that case, Gray J referred with approval (at [19]), inter alia, to R v Reardon (No 2) , R v Spiteri and Easterday v R as explaining the ambit of the prosecutor's duty of disclosure at common law. His Honour discussed the South Australian practice as follows:
"[21] Where a claim of public interest immunity is asserted in relation to evidential material in the possession of the prosecution which falls prima facie to be disclosed, it is, the court was informed, the practice in this State for the Director of Public Prosecutions and not the police to determine whether such claim should be asserted. Upon the Director determining it to be appropriate to assert a claim of public interest immunity, it remains the duty of the court, not the privilege of the Executive, to determine whether evidential material should be produced or may be withheld in the public interest.
[22] Where the Director does claim public interest immunity in relation to evidential material which would otherwise fall to be disclosed as a consequence of the prosecutor's duty, the court was informed that the practice in this State is for the Director to advise the defence of the existence of the material and its general nature without compromising confidentiality, and of the asserted right to withhold the material. If issue is taken, the matter may be the subject of determination by a court upon the return of a subpoena or other application.
[23] Where a claim of public interest immunity is contested, the basis upon which the claim is made is usually supported by affidavit evidence setting out the grounds for the claim. The affidavit will not be disclosed if to do so will undermine the claim. Generally so much of it is disclosed as can be revealed without compromising the claim."
98The submissions made on behalf of the DPP/Attorney General that the stay order of the primary judge has the effect of forcing the DPP to usurp the role of the court in determining public interest immunity claims finds some support in Director of Public Prosecutions (Victoria) v County Court of Victoria . In that case, the accused sought a stay of proceedings on the basis that the DPP did not propose to call a witness, "Carlo" (presumably a pseudonym), at the trial. It is apparent that the stay was granted at a pre-trial stage. The Prosecutor conceded that "Carlo" was a relevant witness who would be called by the Crown in the ordinary course of events and conceded that not to call him may result in a degree of unfairness to the defendant. The Prosecutor had said that "Carlo" was not to be called. The Police would not disclose his name, status (undercover policeman or informer); nor had any proof of his evidence been provided to the Prosecutor. The Police had informed the DPP that the witness's identity would not be revealed as to do so would subject him to danger.
99The trial judge concluded (at 274) that it would be "manifestly unjust to allow the trial to proceed in a way in which it is proposed by the prosecutor" remarking that "[i]n this State, the conduct of criminal trials in a fair and proper manner is a responsibility of the DPP [whose] ... duty ... is to ensure that this takes place". The trial judge granted a stay until a further order. He contemplated (at 273) that the order would be lifted if, and when, the DPP ensured that all relevant evidence was placed before the Court, or "any necessary application" was made to the Court to dispense with such a requirement.
100The DPP sought an order in the nature of mandamus directing the County Court to continue the trial. Ashley J considered (at 278 ff) the ambit of the duty of the Crown to call all available witnesses. He observed that the authorities showed that the duty of a prosecutor to call relevant evidence was "one in respect of which he, and no-one else, must make any necessary decision", subject to trial or appellate remedial action. However he concluded (at 278 - 279) that:
"...this is no warrant for saying that a prosecutor must - at the risk of a trial being, in substance, permanently stayed - obtain the name of and/or a statement from a possible witness; at least if the possible witness is a person whose identity is unknown to the prosecutor, and in respect of whose identity and whose statement (if any) a claim to public interest immunity - by reason of the person being either an undercover police officer or a police informer - has to the knowledge of the Prosecutor been foreshadowed...As a corollary, there is no warrant for saying that a prosecutor must seek information in connection with a foreshadowed claim to public interest immunity, and, if and when the information is provided, informally adjudicate upon the same before deciding what witnesses are to be called - failing which procedure the trial may be stayed. Any claim to public interest immunity is made to and is adjudicated upon by the court.
It may be agreed that a prosecutor, confronted with a foreshadowed claim for public interest immunity, should consider whether evidence is available - absent evidence to which the likely claim relates - which gives reasonable prospect of a conviction being secured; evidence which may be led compatibly with the prosecutor's duty of ensuring that the Crown case is presented with fairness to the accused . Such consideration might lead to a decision not to continue with the prosecution. But it does not involve either an attempt to ascertain the likely content of evidence the subject of a foreshadowed claim to public interest immunity; or obtaining information pertinent to and informally adjudicated upon the merits of such a claim. The distinction between the prosecutor, on the one hand, and the person or authority which possesses information concerning an undercover policeman or police informer is a real one. The cases dealing with the consequences of a prosecutor not calling a witness have characteristically dealt with 'available' witnesses. Contrast the situation in (eg) Meissner where Carruthers J said (at 89) that the trial judge had 'appropriately observed that this was not a case where the Crown refused to call those persons but one in which the Crown was unable to call them'. The distinction is the more evident when it is considered that, most often, a claim to public interest immunity is made, not by the prosecutor, but by a third party - characteristically the Chief Commissioner of Police - in response to a subpoena whose purpose is to secure disclosure of the identity or statement or notes of an undercover police officer or police informer." (Emphasis added)
101His Honour also concluded (at 279) that "there is no support at all for the proposition that a prosecutor has at common law any duty or power to see that a claim to public interest immunity is ventilated before the court". His Honour could not understand by what mechanism it was said that the Director or the prosecutor could place such a claim before the court, it being "characteristic of such claims that they are raised not by the Crown, but by a third party, most often represented, in answer to some step taken by the accused person." His Honour concluded, accordingly, that the stay should not have been granted. He did contemplate (at 281), however, that the issue of public interest immunity would nevertheless arise in the course of the trial and be considered by the trial judge.
102It does not appear that Ashley J was referred to the English authorities considered in R v Reardon (No 2) . In my view Ashley J's reasons are inconsistent with the weight of authority to which I have referred concerning the duty of the police and prosecution to ensure a fair trial.