R v Keane [1994] 2 All ER 478; R v Keogh (No 2) [2015] SASC 180, referred to.

Evidence - Admissibility - Exclusions: privileges - Public interest privilege - Generally - Public interest immunity from disclosure - Claim that statutory declaration made by accused subject to immunity on basis that it contains information given to police in confidence - Identity of accused already known - Fact that declaration has been made already known - Claim to immunity not made out.

Evidence Act 2001 (Tas), ss 130, 131A.

Sankey v Whitlam (1978) 142 CLR 1; Eastman v The Queen (1997) 76 FCR 9; Ryan v State of Victoria [2015] VSCA 353, referred to.

Judgment Number [2017] TASSC 42

1. Shadi Farhat is charged with trafficking in a controlled substance, unlawful trafficking in firearms, and dealing with the proceeds of crime. On each count he is jointly charged with Mickael Bechara. On the count of trafficking in a controlled substance he is jointly charged with Shane Ivey. Mr Bechara and Mr Ivey are jointly charged with another accused, Bridgette Allen, with one count of pervert the course of justice. All four counts appear on the same indictment and arise from, or are connected to, a related series of events in and leading up to September 2013. There is to be a joint trial.
2. Following the arraignment of the accused I agreed to hear and determine a number of matters before a jury is sworn. This ruling concerns whether a statutory declaration made by Mr Farhat to a police officer on 7 October 2013 is to be disclosed to the other accused before the trial.

Application for disclosure of a statutory declaration

1. In the course of his preparation of the trial, counsel for the State became aware of the existence of the statutory declaration made by Mr Farhat on 7 October 2013. I was informed that the declaration was included with the material provided to the Director of Public Prosecutions by the police, but it was not included in the Crown papers provided to each of the accused. Counsel for the State had, by the time the matter was raised with me, informed counsel for the other three accused of the existence of the declaration. All three now apply for a direction that the declaration be disclosed to them. They are aware that it is a declaration made by Mr Farhat but they are not aware of its contents. Disclosure of the document to his co-accused is opposed by Mr Farhat. He says that the declaration is the subject of public interest immunity from disclosure. The Director of Public Prosecutions takes the position that the declaration should be disclosed and does not assert that it is subject to public interest immunity.
2. In the normal course, the principle of open justice is of paramount importance in criminal trials. However, in this case, I took the unusual course of hearing the application in closed court and in the absence of the co-accused and their counsel. Counsel and officers of the Crown were present, as was Mr Farhat and his counsel. I took that course for the obvious reason that, if the claim to immunity from disclosure was ultimately upheld, then the point of the claim would otherwise be compromised or defeated.
3. Two principal issues arise. The first is whether the Crown would, absent any claim to immunity, be subject to a duty to disclose the declaration to the co-accused. If not, then consideration of the claim to immunity is unnecessary. However if the first question is answered in the affirmative, the question then arises whether the claim for immunity is such that the declaration should nevertheless be withheld.

1. In the course of the hearing I received evidence adduced by the State about the circumstances which led to the making of the declaration. The State adduced evidence from two witnesses, Inspector Joanne Stolp and Sergeant Luke Bishop, both police officers. Mr Farhat adduced evidence in support of his contention that the declaration is immune from disclosure. The evidence includes a series of affidavits and other documents. Part of the evidence adduced by Mr Farhat is an affidavit from his counsel, Mr A G Melick SC. The admissibility of most of Mr Melick's affidavit is not disputed but part of it was objected to. Mr Melick was not cross-examined. It was agreed that I would determine the objection as part of these reasons. The following narration of facts represents my findings on the evidence unless otherwise indicated.
2. Mr Farhat was arrested at the Hobart airport on 5 September 2013. The State alleges that he was in possession of firearms and a large amount of cash. The police already had recordings of phone calls between Mr Farhat and Mr Ivey which the State alleges tend to prove the involvement of both men in trafficking in illicit drugs. Through his family Mr Farhat quickly engaged Mr Melick. Mr Farhat instructed Mr Melick that, because he was frightened for himself and his family, he did not wish to give evidence against Mr Bechara. He wanted his defence to be conducted so as to achieve that aim. On the day after Mr Farhat's arrest Mr Melick contacted the senior investigating officer, Inspector Stolp, who then was a detective sergeant. Inspector Stolp told Mr Melick that the police believed that the accused may not be "a principal offender" and that they would be interested in obtaining information from him. According to Mr Melick, the information was to be in return for a recommendation by the police of the acceptance of Mr Farhat's plea to some charges and the provision of a "letter of comfort". Mr Farhat instructed Mr Melick that he would "assist" on condition that the statement would not be used in evidence against him, and that "the statement, or the fact that he had provided information, would not be disclosed to anyone other than law enforcement officers and would only be used for intelligence purposes".
3. Mr Melick conveyed his instructions to Inspector Stolp who, he says, agreed. Mr Melick did not depose as to when this conversation took place, although I infer from the affidavit that it was within a day or two of Mr Farhat's arrest. Mr Melick was not informed of when, or by whom, Mr Farhat would be interviewed.
4. On 7 October 2013 Mr Farhat was interviewed in Launceston by two police officers, Sergeant Luke Bishop and Sergeant Scott Flude. Sergeant Bishop was primarily responsible for the investigation as it concerned Mr Ivey. The interview took some hours. There is no audio or visual recording of the interview because Mr Farhat declined to participate in such an interview. However, in the course of the interview a written statement was prepared in the form of a statutory declaration. The declaration refers to acts of both Mr Ivey and Mr Bechara. At the conclusion of the interview the declaration was read aloud to Mr Farhat and he signed it. In the declaration Mr Farhat says that he is a "willing witness in court". However, during the interview, Mr Farhat made clear that he did not wish to give evidence against Mr Bechara, although he said he would give evidence against Mr Ivey.
5. On 18 October 2013 Inspector Stolp wrote a briefing note to senior officers in the police force recommending consideration of using Mr Farhat as a witness in the prosecution of Mr Ivey. She prepared a further briefing note on 12 November 2013. Inspector Stolp knew that Mr Farhat was frightened of Mr Bechara and not willing to give evidence against him. Her note referred to Mr Farhat's declaration made 7 October 2013 and said that "it has not been disclosed and has been treated as information to date". She recommended that certain charges against Mr Farhat not be proceeded with. On 21 November 2013, Inspector Stolp prepared, with Mr Farhat, a revised version of his declaration, omitting reference to Mr Bechara, and Mr Farhat signed it.
6. In his affidavit Mr Melick deposed to having been instructed by Mr Farhat of threats made to him by Mr Bechara and others. The affidavit also annexes affidavits sworn by Mr Farhat in November and December 2013 in support of applications for bail. Transcripts of other proceedings before this Court were also tendered. In those affidavits and in those proceedings Mr Farhat claimed, or it was asserted on his behalf, that threats had been made to him by Mr Bechara and others in and following December 2013 aimed at discouraging him from speaking to the police. Counsel for the State objected to the evidence of threats as inadmissible hearsay. The objection must be upheld. Evidence of previous representations made by Mr Farhat about threats made to him is relevant only to prove that the threats were made. Evidence of previous representations made by Mr Farhat is inadmissible by operation of the Evidence Act 2001, s 59, unless within one of the exceptions to the hearsay rule. Mr Farhat was available to give evidence at the hearing to determine his claim to immunity from disclosure: Evidence Act, s 3B. He was not called to give evidence even though counsel for the State indicated a wish to cross-examine him. The exception to the hearsay rule which applies when the maker of a representation is available to give evidence in criminal proceedings is s 66. It has no application in this case because it applies only if the person has been or is to be called to give evidence. Thus, evidence of the previous representations is not admissible.
7. This conclusion makes no material difference to my determination of the claim for immunity. As I will later explain, the nature and extent of any danger or threat in a particular case is not critical to the public interest claim. There remains evidence, not objected to, that Mr Farhat told Mr Melick that he did not want to give evidence against Mr Bechara and about his fear of him. Sergeant Bishop agreed that Mr Farhat had told him, at an early stage, that he had "concerns" about Mr Bechara and did not want to give evidence against him. By the time he was cross-examined, Sergeant Bishop was aware that Mr Bechara had a reputation and convictions for violence. Inspector Stolp agreed that Mr Bechara had a conviction for attempted murder, was suspected of other crimes of violence, and, as far as she knew, he was capable of offering violence towards Mr Farhat should he become aware that Mr Farhat had provided information about him. Inspector Stolp agreed that this was one of the reasons that Mr Farhat's declaration was revised to omit reference to Mr Bechara. She also gave evidence that the statement was, in any event, only ever intended for use in the case against Mr Ivey. Mr Farhat's claim that he provided the declaration of 7 October 2013 on condition that the contents would not be disclosed to anyone other than the police and the prosecuting authorities was not challenged.
8. Both Inspector Stolp and Sergeant Bishop were cross-examined about the importance of information and intelligence gathering in police operations and the use of informants. They acknowledged that informants may be registered or unregistered. Inspector Stolp agreed that if information is provided by a police informant on the basis that it is confidential, then it remains "within the province or knowledge of the police and the police intelligence database". She also agreed with the proposition that "so long as that information does not relate to material that should be disclosed in an upcoming trial, it is not information that would normally be disseminated to the Director of Public Prosecutions".

1. The prosecution duty of disclosure has been stated and considered in many cases. Most statements of the nature and extent of the duty derive from the statements of the English Court of Appeal in R v Keane [1994] 2 All ER 478 in the following terms:

"I would judge to be material in the realm of disclosure that which can be seen on a sensible appraisal by the prosecution:

(1) to be relevant or possibly relevant to an issue in the case;

(2) to raise or possibly raise a new issue whose existence is not apparent from the evidence the prosecution proposes to use;

(3) to hold out a real (as opposed to fanciful) prospect of providing a lead on evidence which goes to (1) or (2)."

1. The nature and extent of the duty is, with respect, helpfully described by reference to the authorities by Blue J in R v Keogh (No 2) [2015] SASC 180 at [54]- [64]. At [54] his Honour summarised the position:

"54 The prosecution owes a duty to disclose to the defence on a timely basis:

(a) evidence proposed to be adduced by the prosecution including the evidence of witnesses and proposed exhibits;

(b) evidence of witnesses who the prosecution does not propose to call;

(c) material that tends to reflect materially on the credibility of prosecution witnesses;

(c) material that tends to weaken the prosecution case or assist the defence case;

(e) material that is relevant to an issue in the case." [Citations omitted.]

1. Like Vanstone J in Police v Wells [2015] SASC 184, I do not agree that there is an obligation upon the prosecution to "go out into the world and investigate matters which might reflect upon the credibility of prosecution witnesses and then to disclose those matters". Subject to that reservation, the passages just quoted are consistent with statements made by intermediate courts of appeal in other States and in the High Court: see for example Mallard v The Queen [2005] HCA 68, 224 CLR 125; R v Farquharson [2009] VSCA 307, 26 VR 410; Kev v The Queen [2015] VSCA 36; R v Reardon (No 2) [2004] NSWCCA 197, 60 NSWLR 454; R v Spiteri [2004] NSWCCA 321, 61 NSWLR 369 at [17]-[20]; R v Lipton [2011] NSWCCA 247, 82 NSWLR 123; Potier v The Queen [2015] NSWCCA 130; Cooley v Western Australia [2005] WASCA 160, 155 A Crim R 528 at [57]; and R v Andrews [2010] SASCFC 5, 107 SASR 471.
2. I am bound to follow these cases unless legislation or binding authority in this State mandates the contrary. It does not. The foregoing statements reflect the practice routinely adopted by the DPP in Tasmania and the approach he adopts in this case. It also reflects the obligation of disclosure imposed on a Commander of Police for persons charged with an indictable offence: Justices Act 1959, Pt VII, s 57.
3. The duty of disclosure is a continuing duty owed to the court to ensure that an accused is not tried unfairly: Smith, M and Madden v The Queen [2003] TASSC 91 citing Cannon v Tahche [2002] VSCA 84, 5 VR 317 at 339-341. In R v Keogh (No 2), Blue J stated at [57] that fairness is the "ultimate criterion as to what should be disclosed. If it would not be unfair to the accused not to make disclosure of particular matters in particular circumstances, there will not be a duty to disclose them."
4. Whether Mr Farhat's declaration should be disclosed is, subject to the claim to immunity, to be considered by reference to the principles just stated. The case against Mr Farhat, Mr Ivey and Mr Bechara is that each accused conducted the business of selling drugs. It is the type of case referred to in Giretti (1986) 24 A Crim R 112. An accused cannot be convicted unless the Crown proves beyond reasonable doubt that, during the period alleged in the indictment, not necessarily the whole period, the accused was engaged in a continuous activity of a commercial and systematic kind. The prosecution might succeed without establishing any particular instance of drug trafficking, or fail although it has established particular instances of drug trafficking. It is not necessary to descend to detail, but Mr Farhat's declaration goes directly to those issues. It describes his acts and the acts of his co-accused during the relevant period. He makes admissions and inculpates his co-accused. I cannot see that it, as it concerns his co-accused, is in any way exculpatory. It is exculpatory for Mr Farhat to the extent that it seeks to downplay or minimise the degree of his own culpability and responsibility for the criminality he describes.
5. However, the use to which the declaration may be put is very limited. The same may be said of the modified declaration. The Crown does not intend to adduce any evidence of the making or contents of either declaration. It has formed the prosecutorial judgment that the contents are inadmissible by virtue of the Evidence Act, s 85A. Mr Farhat is not a competent witness for the prosecution in the joint trial: Evidence Act, s 17(2), Kirk v Industrial Court of New South Wales [2010] HCA 1, 239 CLR 531 at [52], [116]. Thus, what he may say, and what he said in any declaration he made to the police, can form no part of the Crown case. However there may be ways in which the fact of the making of the declaration, or its contents, may have some part to play. It may assist the defence in the cross-examination of other prosecution witnesses. I think it unlikely that the declaration may be used to attack the Crown case but it is difficult for me to judge at this stage of the proceedings. It is also possible that the contents of the declaration may affect the way cross-examination of a police witness, for example, may be conducted by counsel for an accused so as to limit the prospect of unfavourable evidence being inadvertently adduced in the presence of the jury.
6. The contents of the declaration are relevant in other ways. At this stage it cannot be determined whether Mr Farhat or any other accused will elect to give evidence, or call witnesses, in his or her defence. Mr Farhat describes facts which directly concern the Crown case against the accused charged with trafficking in drugs, as well as each other count on the indictment. In the event that an accused elects to give evidence at the trial, the content of the declaration is fertile material for cross-examination and might give counsel for the Crown a forensic advantage. The information in the declaration may have led to a line of inquiry the result of which may have been the obtaining of other evidence which may be used to cross-examine an accused. In that way, disclosure may affect whether an accused elects to give or adduce evidence. In the event that there is dispute between the co-accused about the nature of their respective roles, the declaration is directly relevant. The contents of the declaration may, in some way that I cannot determine, inform an accused of a matter which may assist his or her case. The contents of the statement may conceivably influence the way in which counsel for co-accused cross-examine other prosecution witnesses.
7. Accordingly, the declaration should be disclosed unless there is a good reason not to do so.

1. Mr Farhat claims that the declaration is subject to immunity from disclosure on public interest grounds. The submission first relies on the Evidence Act, s 130. That provision concerns exclusion of evidence of matters of state. For the purposes of s 130, information or a document is taken to relate to matters of state if adducing it as evidence would 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. However, s 130 can have no application here. In its direct application, it applies to admission of information or a document into evidence. In this case, no-one seeks to admit Mr Farhat's declaration into evidence. The objection concerns its disclosure. The terms of s 131A are not engaged so as to require me to determine Mr Farhat's claim by applying the provisions of s 130. Section 131A only applies if the "person" required to produce the document is the person who objects to the provision of the document. In this case it is the DPP who is subject to the disclosure requirement to produce the document, and he does not object to doing so: s 131A(1)(b).
2. However, s 130 reflects, to a substantial extent, the common law principles governing public interest immunity: Eastman v The Queen (1997) 76 FCR 9 at 63, Ryan v State of Victoria [2015] VSCA 353. The common law doctrine of public interest immunity protects from compulsory disclosure documents or information where disclosure would be injurious to the public interest: Sankey v Whitlam (1978) 142 CLR 1 per Gibbs ACJ at 38-39. How a claim is to be assessed was considered in detail by the Court of Appeal in Victoria in Ryan v State of Victoria. Assessment requires the court to weigh the public interest that would be harmed by the production of the evidence against possible injustice if the evidence was withheld. Objection may be taken by a private person, whether witness, litigant or person subject to an order for production, and the court must consider the issue for itself.
3. Courts have long recognised a public interest in the protection from disclosure of the identity of police informants: Marks v Beyfus (1890) 25 QBD 494; Cain v Glass (No 2) (1985) NSWLR 230. If the identity of an informer were liable to be disclosed, sources of information would dry up and the police would be hindered in their duty of preventing and detecting crime: D v National Society for the Prevention of Cruelty to Children [1977] UKHL 1, [1978] AC 171; Sankey v Whitlam at 65-66; and Cain v Glass (No 2) at 247; R v Abdullah [1999] NSWCCA 188 at [20]- [24]; Derbas v The Queen [2012] NSWCCA 14, 221 A Crim R 13. The rule applies except where the identity of the informer may show that an accused is innocent, or is otherwise of real or substantial assistance to the accused: Cain v Glass (No 2) at 246-247.
4. In this case, the balancing exercise must weigh the extent of any legitimate forensic purpose in disclosure, whether non-disclosure would impede the accused's right to a fair trial and the evidentiary value and importance of the document to the accused with the public interest against disclosure asserted by the claimant. The categories of public interest are not closed: Sankey v Whitlam at 60; D v National Society for the Prevention of Cruelty to Children at 230. However, a party, that asserts a claim of public interest immunity to protect a document or information from disclosure, is required to identify, with precision, the basis upon which it is claimed.
5. On one side of the balancing exercise, Mr Farhat points to the limited forensic value, for his co-accused, that his declaration offers. He contends that any potential for injustice may be cured by permitting the opportunity for later disclosure of the document, if, for example, one or more accused elects to give evidence. However the contents of the declaration go directly to the issues in the trial, even though not forming part of the prosecution evidence. It is very difficult, at this stage of the proceedings, to predict with any confidence the nature and extent of any injustice which may arise as a result of non-disclosure. As I indicated earlier, I think that the contents of the document may affect the decision of an accused about whether to elect to give evidence at all. Without the declaration an accused may be at a disadvantage in exercising that election.
6. On the other side of the balancing exercise, the public interest Mr Farhat contends is that his declaration contains information given to the investigating police officers by him in confidence, and that he only provided that information on the basis that his assistance to police would not be made known to anyone. Otherwise, he says, his safety and the safety of others associated with him may be compromised. There is a public interest, he contends, in not disclosing statements made to the police in those circumstances because, otherwise, an important source of police information would tend to dry up. So characterised, the claim to immunity involves similar considerations to a claim relating to the identity of a police informant. However, that is not a claim advanced by the Director of Public Prosecutions and I think this case involves important differences. This is not a case where the identity of a police informant is sought to be protected. Mr Farhat's identity is known. He is not an informant whose identity is not known. He is a co-accused who will be tried at the same time as the other co-accused. It is already known that a declaration exists. It is only the contents which are not known. The declaration was made by him in the hope that he may obtain some advantage by making it. It is not necessary to show the existence of any real or imminent danger to an informer. As McHugh J stated in Cain v Glass (No 2) at 253-254, it is "precisely because informants may often be in danger that the public interest requires that their anonymity should be protected". However, the question of anonymity is not the issue here. I am not satisfied that disclosure adds to any actual risk, at least not to the extent which outweighs the factors favouring disclosure.
7. The conclusion I have reached is that, notwithstanding the limitations on the forensic value of the declaration which is the subject of the claim to immunity, the claim is not made out. I would order disclosure of the declaration.