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[2017] VSC 807
Supreme Court of Victoria
2017-12-21
Beale J
Original judgment source is linked above.
EVIDENCE - Public interest immunity - Accused is charged with murder - Defence of self-defence - Matters of State - Evidence Act 2008 ss 130, 130A.
1 This is a ruling on public interest immunity (PII) claims made by the Commissioner of the Australian Federal Police (AFP) and the Chief Commissioner of Victoria Police (VicPol) in response to subpoenas dated 12 September 2017 served by Kamil Yucel.
2 Mr Yucel is facing trial for the alleged murder of Rahat Khan. In very brief terms, Mr Khan and another man, Masinhulah Rawani, approached Mr Yucel outside his home in Dallas on the afternoon of 12 July 2016. There was a short, tense verbal exchange between the men. Mr Yucel produced a gun and shot Mr Khan in the chest and the leg. Mr Khan died soon after.
3 There was a no comment record of interview but, as indicated in the defence response, Mr Yucel claims that he shot Mr Khan in self-defence.
4 Mr Khan was a friend or associate of Farshad Rasooli, who was shot in the leg in May 2015, allegedly by an associate of Mr Yucel in Mr Yucel's presence. Judging from the depositional material, the defence will argue at trial that Mr Kahn and Mr Rawani approached Mr Yucel outside his home in connection with that earlier shooting and Mr Yucel shot Mr Kahn out of fear.
5 Save for one document, I am satisfied, based on, first, the material provided to me (much of which is necessarily confidential) and, second, the submissions advanced on behalf of the AFP and VicPoL, that the PII claims should be upheld and that it is appropriate for me to direct, pursuant to s 130 (2) of the Evidence Act 2008 (the Act), that the information and documents the subject of the PII claims not be disclosed.[1] I have come to this conclusion after careful inspection and consideration of the information and documents the subject of the PII claims.
6 One document - over which the AFP claims PII in its entirety - has not been provided to me for inspection. Accordingly, while I am satisfied on the material that has been provided that the information contained in that document is likely to relate to a 'matter of state', I am not yet in a position to undertake the balancing exercise required by s 130(5) of the Act. Pursuant to s 130 (3) of the Act, I direct that the document in question, and any confidential supporting material, be provided to my associate at midday on Monday 29 January 2018. I will provide my ruling in respect of that document as soon as possible thereafter.
The information and documents for which PII is claimed
7 The information and documents for which PII is claimed are set out below.
8 Adopting the terminology of s 130 of the Act, I use the word "information" to refer to material that has been redacted in various documents, mainly information reports.
9 With respect to the information reports, I have used the following abbreviations: 'IN' refers to 'Investigation Name'; and 'SN' refers to an information report's sequence number. I note that IN 'POLYSULFIDE' relates to the investigation of the shooting of Farshad Rasooli in May 2015. IN 'SUBTEXT 16' relates to the fatal shooting of Mr Kahn in July 2016.
10 Regarding the AFP PII claims, there is one document for which PII is claimed in its entirety which, as mentioned, is still to be provided to me for inspection.
11 PII is also claimed by the AFP for redacted information contained in the following four VicPol Information Reports:[2]
12 PII is also claimed for redacted information contained in one Intelligence Brief dated 1 February 2016.
13 Regarding the VicPol PII claims, there are seven documents for which PII is claimed in its entirety, all Information Reports:
14 PII is also claimed by VicPol for Information contained in another 11 documents, all but one being Information Reports:
15 In Ryan v State of Victoria,[6] Tate JA explained the statutory scheme in detail:
Section 130 of the Act is the foundation of the statutory test for a claim of public interest immunity. Section 130(1) relevantly provides for a balancing exercise between two competing public interests; the public interest in the confidentiality of 'matters of state' and the public interest in admitting the information or the document into evidence:
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.
Subsection (2) of s 130 confers a power on a court to exclude information or documents from being adduced into evidence, on its own initiative or in response to an application. Subsection (3) allows for the court to inform itself as it thinks fit:
(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.
Subsection (4) of s 130 sets out a list of circumstances in which information or a document is deemed to relate to 'matters of state' without limiting other circumstances that may also so relate. It provides:
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 -
(a) prejudice the security, defence or international relations of Australia; or
(b) damage relations between the Commonwealth and a State or between 2 or more States; or
(c) prejudice the prevention, investigation or prosecution of an offence; or
(d) prejudice the prevention or investigation of, or the conduct of proceedings for recovery of civil penalties brought with respect to, other contraventions of the law; 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
(f) prejudice the proper functioning of the government of the Commonwealth or a State.
...
Subsection (5) of s 130 enumerates a non-exhaustive list of matters which the court must take into account when undertaking the balancing exercise in sub-s (1):
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 an accused 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 an accused - whether the direction is to be made subject to the condition that the prosecution be stayed.
Section 131A of the Act extends the operation of s 130 from the admission of evidence to various forms of compulsory disclosure, including, relevantly, pre-trial discovery...:
(a) a person is required by a disclosure requirement to give information, or to produce a document, which would result in the disclosure of a communication, a document or its contents or other information of a kind referred to in Division 1, 1C or 3; and
(b) the person objects to giving that information or providing that document -
the court must determine the objection by applying the provisions of this Part (other than sections 123 and 128) with any necessary modifications as if the objection to giving information or producing the document were an objection to the giving or adducing of evidence.
(2) In this section, disclosure requirement means a process or order of a court that requires the disclosure of information or a document and includes the following -
(a) a summons or subpoena to produce documents or give evidence;
(b) pre-trial discovery;
(c) non-party discovery;
(d) interrogatories;
(e) a notice to produce;
(f) a request to produce a document under Division 1 of Part 4.6;
(g) a search warrant.
16 In Ryan, Tate JA also helpfully summarised the relevant common law principles which inform the statutory scheme. She said:[7]
Before examining each of the grounds of appeal, it is useful to recall the key principles governing public interest immunity at common law. This is important because the common law informs the statutory immunity. If the common law and statutory immunity were to be considered separately, the principles to be applied would not be meaningfully different. It is also useful to consider the context of police methodology as well as a recent Victorian authority on public interest immunity.
The common law doctrine of public interest immunity protects from compulsory disclosure documents or information where disclosure would be injurious to the public interest. Assessing whether a claim of public interest immunity ought to be upheld requires the court to weigh the public interest that would be harmed by the production of the evidence against the frustration or impairment of the administration of justice if the evidence was withheld.
The foundational common law statement of principle on public interest immunity is found in Sankey v Whitlam.[8] As Gibbs ACJ said:
The general rule is that the court will not order the production of a document, although relevant and otherwise admissible, if it would be injurious to the public interest to disclose it. However the public interest has two aspects which may conflict. These were described by Lord Reid in Conway v Rimmer, as follows:
'There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done.'
It is in all cases the duty of the court, and not the privilege of the executive government, to decide whether a document will be produced or may be withheld. The court must decide which aspect of the public interest predominates, or in other words whether the public interest which requires that the document should not be produced outweighs the public interest that a court of justice in performing its functions should not be denied access to relevant evidence. In some cases, therefore, the court must weigh the one competing aspect of the public interest against the other, and decide where the balance lies.[9]
A party asserting a claim of public interest immunity to protect a document from disclosure is required to identify with precision the 'character of the particular information in issue and the nature of the particular litigation' in which the public interest issue arises.[10] The party seeking access to the document must demonstrate a legitimate forensic purpose in disclosure.[11]
It is well accepted that the categories of public interest are not closed.[12] Categories of public interest include claims made in relation to national security, Cabinet deliberations, high-level advice to government, intra-government communications or negotiations, police informers, other types of informers, police investigations, and the activities of intelligence officers. Under the common law, a 'rough but accepted' distinction is drawn between 'class claims' and 'contents claims'; that is, between public interest immunity claims the subject of which is a document falling within a specific 'class' irrespective of its content, for example a Cabinet document, and a document attracting the immunity because of the sensitive nature of its 'content'.[13]
In undertaking the balancing exercise, the court will generally have regard to a number of considerations. These include whether non-disclosure would impede the accused's right to a fair trial,[14] the evidentiary value and importance of the documents to the issues,[15] whether ordering disclosure would cause sources of information to 'dry up', whether preserving candour would facilitate the public function in issue, and whether the material is already in the public domain[16] or has current sensitivity.[17] The court is also to accord weight to an assertion by an authorised representative of government that the public interest would be at risk in the event of disclosure.[18]
There is considerable support in the authorities for the view that the principles governing public interest immunity under s 130 of the Act reflect those applicable at common law; what differences exist are of no practical significance...
In Eastman v The Queen[20] the Full Federal Court[21] upheld the immunity to preclude disclosure of some information relating to 'police investigation methods, to informers, ... to the police assessment of some of the information gathered in the inquiry, and to matters unrelated to the murder investigation'.[22] In doing so, it applied the principles governing the immunity at common law:
Section 130 closely reflects the common law position. ... Referring to the common law position, Gibbs CJ in Alister v R said that the balancing exercise required the judge to consider 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 administration of justice would be impaired if by withholding the documents an accused would be denied a fair trial. The question therefore arises in the balancing exercise whether the documents contain evidence material to the accused's defence. In Alister Gibbs CJ said
' ... the balancing exercise - can only be taken 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.'
If the document does not contain material evidence, the need for the balancing exercise does not arise and in the public interest the documents should not be discovered.
As to the test to be applied in determining whether there is or is likely to be evidence which is material, Gibbs CJ in Alister said:
'Although a mere "fishing" expedition can never be allowed, it may be enough that it appears to be "on the cards" that the documents will materially assist the defence.'
The test proposed by Wilson and Dawson JJ was that the applicants for production were required to show a basis for a rational inference of a likelihood that the documents would go substantially to proof of their innocence of the charge against them.[23]
...
The common law distinction between 'class' claims and 'contents' claims has also been adopted under the statutory regime.[24] That distinction continues to inform the doctrine of public interest immunity, as illustrated by a number of contemporary authorities that refer to that classification.[25]
18 Ryan was a civil case, and I have borne that in mind so far as the result in Ryan was concerned.
19 I have also borne in mind what Gillard J said in R v Mokbel:[26]
The public interest that [an accused] should have the fullest and unhindered opportunity of testing the Crown case and presenting his defence is trite and needs no amplification.
20 A fortiori where the accused is charged with murder.
The matters of state that would be affected by disclosure
21 Having regard to s 130 (4) of the Act, I am satisfied that the 'matters of state' that would be adversely affected if there was disclosure of the information or documents in question include:
(b) relations between the Commonwealth and a State;
(c) the prevention, investigation or prosecution of an offence;
(e) 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
(f) the proper functioning of the government of the Commonwealth or a State.
22 I have had regard to the considerations mentioned in s 130 (5) of the Act.
23 In my view, the documents or information for which PII is claimed are not important to the ultimate fact in issue of whether the prosecution can establish beyond reasonable doubt that the accused did not act in lawful self-defence. In reaching that view, I have had regard to the material that has been disclosed in response to the subpoenas.
[1] Some information was redacted in the relevant documents on the basis that it was not relevant. I accept that those redactions were appropriate.
[2] In oral submissions it was suggested that only one document was the subject of a PII claim by the AFP but materials provided to me suggested that there was also other information in four Information Reports the subject of the claim, which overlaps with the PII claims by VicPol.
[3] IN 'VIOLET 2015' relates to an affray at the Bridge Hotel in Richmond on 29 November 2015.
[4] The investigation named VIOLET relates to an affray at the Bridge Hotel in Richmond on 29 November 2015.
[5] IN 'PAXPOIN Mgt Plan 42/015' is connected with IN 'POLYSULFIDE'.
[6] Ryan v State of Victoria [2015] VSCA 353, [26]-[28], [30]-[31].
[7] Ryan v State of Victoria [2015] VSCA 353, [52]-[58].
[10] Brazel [2008] VSCA 37; (2008) 19 VR 553, 568 [47].
[11] Burmah Oil Co Ltd v Bank of England [1979] UKHL 4; [1980] AC 1090, 1113-4, 1129; Alister v The Queen [1984] HCA 85; (1984) 154 CLR 404, 412, 414, 438.
[12] Sankey v Whitlam (1978) 142 CLR 1, 60; D v National Society for the Prevention of Cruelty to Children [1977] UKHL 1; [1978] AC 171, 230.
[13] Commonwealth v Northern Land Council [1993] HCA 24; (1993) 176 CLR 604, 616 (Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ), citing Burmah Oil Co Ltd v Bank of England [1979] UKHL 4; [1980] AC 1090, 1111 (Lord Wilberforce).
[14] Alister v The Queen [1984] HCA 85; (1984) 154 CLR 404.
[15] Australian National Airlines Commission v Commonwealth [1975] HCA 33; (1975) 132 CLR 582.
[16] J D Heydon, Cross on Evidence (LexisNexis Butterworths, 10th ed, 2015) [27175]-[27185].
[17] Brazel [2008] VSCA 37; (2008) 19 VR 553, 557 [8], 560 [16], 569 [52].
[18] Sankey v Whitlam (1978) 142 CLR 1, 44, 46 (Gibbs ACJ), 59-60 (Stephen J), 96 (Mason J).
[19] Ryan v State of Victoria [2015] VSCA 353, [60], [67].
[20] (1997) 76 FCR 9 ('Eastman').
[21] von Doussa, O'Loughlin and Cooper JJ.
[22] Eastman (1997) 76 FCR 9, 65.
[24] See, eg, Ahmet v Chief Commissioner of Police [2014] VSCA 265 [20]-[22]. See also SBEG v Secretary, Department of Immigration and Citizenship [2012] FCA 277; (2012) 291 ALR 281, 286 [15]-[16] (considering s 130 of the Cth Act).
[25] See, eg, Murphy v Victoria [No 3] [2014] VSC 624 [32]; Tatts Group Ltd v Victoria [2013] VSC 301 [4], [26].
[26] R v Mokbel [2005] VSCA 410, [71].
The Queen
Yucel
(1978) 142 CLR 1
(2008) 19 VR 553
(1984) 154 CLR 404
(1993) 176 CLR 604
(1975) 132 CLR 582
(1997) 76 FCR 9
(2012) 291 ALR 281