State of NSW v Biber

Supreme Court of NSW|2021-02-03|Before: Button J, Bellew J

Introduction

At the conclusion earlier today of an interlocutory argument at the commencement of a hearing pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (the HRO Act), I dismissed a notice of motion of the NSW Commissioner of Corrective Services (the CCS) of 19 January 2021 claiming public interest immunity with regard to certain documents.
Time is of the essence, because counsel for the CCS indicated that an adverse ruling on the motion would very likely be the subject of an appeal. And it seemed to me (and was agreed in by counsel) that the substantive hearing could not proceed further without this interlocutory question having been resolved, not least because cross-examination of experts was foreshadowed. Furthermore, the mandatory "cut-off point" to be found in s 10C(2) of the HRO Act means that it will shortly be the case that Mr Andrew Biber (the defendant) cannot be the subject of any further intensive supervision orders (ISOs) after 20 February 2021.
For those reasons, I indicated to the parties that I would provide them with these reasons as a matter of urgency. I also indicated that this judgment would not be placed on Caselaw for the time being, in case I have accidentally referred to any material in this judgment that must remain confidential.

Legal principles

The CCS and the defendant were content with the following legal approaches to the question.
First, despite the existence of s 131A of the Evidence Act 1995 (NSW), the question is to be determined upon the common law principles of public interest immunity, and not the statutory principles of exclusion of matters of state, to be found in s 130 of the Evidence Act. Not least because it seemed to me that the mechanism of disclosure operating here was not captured by s 131A(2) of the Evidence Act, I accepted that joint submission.
Secondly, in accordance with the approach discussed in Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1 and Alister v The Queen [1984] HCA 85; (1984) 154 CLR 404 my task was to assess the public interest in disclosing or not disclosing the material to the defendant. That involves thinking about two different aspects of the public interest: on the one hand, the public interest in all relevant material being able to be placed before a court in determining a disputed matter; and, on the other hand, the public interest in the efficient operation of "government" (to use a generic term), which sometimes requires confidentiality (to use another one). Both parties were content for me to adopt a three stage test of assessing first the risk to the state, thereafter the potential value of the evidence to the defendant, and, if those two aspects of public interest are in conflict, doing my best to "balance them up" (J D Heydon, Cross on Evidence, 11th Australian edition (2017) LexisNexis at [27150] and following).
Thirdly, I was informed that no statutory provision, whether in the HRO Act or elsewhere in the statute law of New South Wales, conferred any measure of confidentiality upon the deliberations of the Committee.
Fourthly, although I was helpfully taken to a number of authorities discussing public interest immunity generally, neither party invited me to any authority said to shed particular light on the specific circumstances here arising.

Submissions of the CCS

The very helpful submissions - refined orally at the hearing - made on behalf of the CCS may be summarised as follows.
First, the nub of the claim is the need for members of a committee such as this to be able to speak freely and frankly about significant questions of the liberty of others, without the fear that the records of what they have had to say will be subsequently pored over in a courtroom or elsewhere. In the absence of that freedom, the quality of their advice will inevitably suffer.
Secondly, questions of the physical security of the members of the Committee were eschewed in this case.
Thirdly, it is true that the HRO Act contains no explicit provision affording confidentiality to the reasons of the Committee. Even so, it is noteworthy that the Committee is created by statute, and its functions are detailed and various. In other words, it is not some informal consultation group that has been created for some purpose or another by the CCS; it has been regarded as sufficiently significant by Parliament to be worthy of its own creation.
Fourthly, it is true that questions of national security, cabinet collective responsibility, and the like do not arise here. Nevertheless, the Committee is sufficiently senior to make its recommendations to the Attorney General himself. The structural level at which the Committee provides its advice itself argues for the application of the immunity.
Fifthly, and turning now to an assessment of the potential value of the evidence, the submission was that one might infer that some of the members of the Committee are persons of due expertise with regard to criminology, broadly understood. But there is nothing to suggest that the minutes of the meeting giving rise to the recommendation would provide detail about the expertise of any member. In other words, a proper assessment of the value of any expressed opinion would not be possible.
Sixthly, one might infer that the members of the Committee had some material before them about the defendant. But it may well have been less than or different from that proposed to be placed before me, and less than or different from that which had been provided to the experts qualified by the plaintiff and the defendant. In other words, the foundational material could very easily not be "like for like". And without knowing the nature and extent of the material placed before the members of the Committee, their opinions are rendered of little value.
Seventhly, if public interest immunity were not upheld, and assuming that the defendant could overcome the doctrine of exclusion of matters of state and tender the material or rely upon it in cross-examination of the experts of the plaintiff, none of the committee members would be expected to be called. In other words, their opinions would simply be "floating in the ether" before me, shorn of true knowledge of the expertise of the author or the sub-structural context, and without the benefit of cross-examination.
Eighthly, the situation would be very different if one of the experts relied upon by the plaintiff had also sat upon the Committee, and expressed a prior inconsistent opinion at that stage; that is certainly not the case here.
Ninthly and finally, the submission was that, as a matter of inference, one would expect a committee such as this to take into account many other factors (perhaps bureaucratic, or logistical, or cost-based) that are not vouchsafed to me. In other words, the submission was that one might expect many of the reasons for the recommendation to be quite irrelevant to my task.
In short, then, the submission was that the material is of little potential value to the defendant, and its disclosure could interfere with the work of an important Committee quite significantly. For those reasons, it was said that the immunity should be upheld.

Submissions of the plaintiff

I permitted the plaintiff to make submissions on this interlocutory question, to which he was not a direct party, with regard to the question of the value of the material, in light of the real issues in the substantive hearing; in other words, analogously perhaps to an assessment of "legitimate forensic purpose" in the context of other regimes of disclosure.
Counsel submitted that, due to the paucity of evidence about the members of the Committee and the material upon which their opinions had been based, the value of the material sought would be quite low in the substantive hearing.

Determination

The submissions for the CCS were, with respect, presented cogently and persuasively. Even so, at the conclusion of the interlocutory hearing I came to the view that the public interest favoured the provision to the defendant of (at the least some of) the underlying reasons for the recommendation of the Committee. The factors that seemed to me to be important were as follows.
First, it is true that an application under the HRO Act is not a criminal proceeding. It is also true that the submission of the plaintiff is not that the defendant should be incarcerated, pursuant to a continuing detention order (CDO). Even so, what is sought here is a significant diminution of the liberty of the defendant over a very lengthy period. And breaches of the conditions of an ESO can and do lead to further incarceration. In short, the essential nature of the proceedings against the defendant seemed to me to argue, in a general way, in favour of disclosure.
Secondly, as I have said, expert evidence about the risks said to be presented by the defendant, and ways of managing them, is (as is common in proceedings such as these) an important part of the evidence. And it is made more important by the fact that it is in dispute, at least to the extent that the expert qualified by the defendant has come to less pessimistic views than those qualified by the plaintiff, and it is proposed that there be reasonably extensive cross-examination of the three of them.
In other words, the assessment of experts is almost always important in proceedings such as these generally. And because those assessments are disputed, they are even more important in this particular case.
Thirdly, those facts feed in to the following. It is true that the open affidavit does not contain details of the qualifications, knowledge, training, and experience of the voting members of the Committee. Even so, I believe that one can readily infer from their job descriptions, the concomitant seniority of many of them, their appointment itself to the Committee, the medical qualifications of some of them, the psychiatric qualification of one of them, and the fact that the recipient of their advice is a Minister, that these are very largely people who can be thought of as experts in criminological matters. Not only that, one can infer from the annexures to the open affidavit that they are persons with varied focuses of expertise. In other words, I think that their opinions are, prima facie, worthy of significant weight.
Fourthly, it is true that there is nothing to suggest that I would be informed of the precise extent of the material placed before the Committee members. And it is also true that that material might well have been less extensive and different from that placed before the qualified experts and to be placed before me. Even so, I think that one can safely infer that a Committee such as this one would not make recommendations about applications to diminish or extinguish liberty for extended periods except on reasonably extensive evidence about a person such as the defendant.
In other words, whilst that lack of clarity detracts from the probative value of the reasons underpinning the recommendation, it by no means renders it nugatory.
Fifthly, it is true that one might expect a Committee such as this to apply criteria and take into account factors that are irrelevant to my statutory task. Even so, the possible presence in the unredacted minutes of reasons irrelevant to the substantive hearing does not detract from the possibility of reasons that are significantly probative.
In a nutshell, with regard to the public interest in material of value being available to a Court: the subject matter of the proceedings is a significant diminution of liberty, leading to possible incarceration as an indirect consequence. An important part of my substantive determination is an assessment of expert opinions about the defendant. Criticisms can certainly be made of the potential value of the material under consideration. But I assess its possible value to the issues that I need to resolve - bearing in mind in particular the characteristics of the members of the Committee themselves, and the degree of conjunction between the question under consideration by them and the question to be considered by me - as being reasonably significant.
Sixthly, turning now to the countervailing question of the risk of injury to the public interest in the sense of the efficient administration of the state, I felt it important that no reliance was placed upon questions of national security, political convention, or personal safety.
Seventhly, it is true that the Committee is operating at a very high level. It is also true that, as the CCS submitted, that "cuts both ways", and in a sense argues for non-disclosure.
But what is sought by the defendant is simply the minutes of a meeting that led to a recommendation as to whether or not a person should be the subject of an application seeking deprivation or diminution of liberty. That is the kind of decision or recommendation with regard to which reasons are commonly promulgated within the criminal justice and correctional systems: the reasons of the State Parole Authority (SPA) to grant or refuse or revoke parole; the decision or recommendation of a parole officer to institute revocation of parole or call-up of a "bond"; the decision of a classification board to refuse reduction in security classification of a prisoner; indeed, the decision of a sentencing judge to impose a custodial or non-custodial sentence. There may well be other persons or bodies who commonly give their reasons for decisions or recommendations about the liberty of others.
In other words, dissemination of the reasons underpinning the recommendation would hardly be "out of step" with other aspects of the criminal justice and correctional systems. In many other settings, it is entirely orthodox.
Seventhly and finally, I accept the possibility that members of the Committee may express themselves more advisedly if they were aware that minutes of some of their meetings may be made available to the persons who are the subject matter of those meetings. And it is true, I think, that that may lead to opinions being expressed more circumspectly, or minutes being less detailed, and the like.
But I do not see any great procedural or structural harm arising from the reasons for a recommendation of members of the Committee being made available to directly interested persons, at least in the context of litigation about the liberty of such persons, and at least in the circumstances of this case, in which, to repeat, security concerns were not relied upon.
In short, I considered the two aspects of the public interest in the context of the issues in the substantive proceedings as I understood them to be. I accepted that the factors "pointed both ways" with regard to public interest, as they commonly do. Whilst I accepted that the potential value of the material in question was not particularly high, nor did I dismiss it as insignificant. And I assessed the potential injury to the efficient operation of the government from disclosure of the material as being quite small. In the result, I came to the opinion that, in the circumstances of this case, the public interest favoured the immunity claimed not being upheld.

Tailored orders?

I should say for completeness that, in discussion with counsel during the hearing, I raised the possibility of orders that could permit the defendant to have the benefit, or some of the benefit, of the material, whilst also protecting the interests of the CCS, or protecting them to some degree. At the time when I dismissed the motion, I was of the view that such orders certainly could, and perhaps should, be made. At my request, my Associate had before the hearing asked both counsel by email to reflect upon that as a possible, ancillary outcome, in the interests of instructions being obtained in advance.
During oral submissions, however, counsel for the CCS made it clear that his position was that no such orders could be efficacious in achieving a satisfactory outcome. In light of his firm opposition, and the foreshadowed appeal against an adverse ruling, I did not, and shall not now, pause to consider such a possible solution.

Costs

Despite the success of the defendant on this discrete interlocutory dispute with a third party, no submissions were made about costs at the hearing, and they must be reserved.
[Costs were subsequently ordered in favour of the defendant in Chambers, on the basis of a consent short minute of order.]

Orders

It is for those reasons that, at the conclusion of the hearing, I made the following order: 1. Notice of motion of the Commissioner for Corrective Services of 19 January 2021 dismissed.
The following order was made in Chambers: (2) The Commissioner of the Corrective Services for New South Wales must pay the defendant's costs pursuant to s 42 of the Legal Aid Commission Act 1979 NSW.

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: 05 February 2021

Evidence Act 1995(NSW)ss 130, 131A(2)

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