Vitale v Commissioner of Police

Evidence

In support of the Application in these preliminary proceedings, the Commissioner relied on the affidavit of Sergeant (now Acting Inspector) Benjamín McIntyre, sworn on 11 June 2021. Sergeant McIntyre has been a Police officer for 19 years and is currently a general duties team leader at Fairfield. Prior to that role he worked in Strike Force Raptor which investigated Outlaw Motorcycle Gangs (OMCGs), and associated criminal groups. He is an organised crime specialist.
Based on his experience, and after reviewing the Confidential Documents, his evidence was to the effect that: 1. Disclosure of any of the confidential material would or could: 1. prejudice current and future investigations into criminal activity; 2. identify confidential sources of information to law enforcement; 3. expose police methodology; 4. place identified persons at risk of harm; 1. The information in the Confidential documents has been collated and maintained by the Police to assist in the monitoring and investigation of criminal activity and those persons who participate in unlawful conduct. Such is the confidential and sensitive nature of the Confidential documents that, even within the Police, they are only accessible by select law enforcement personnel who have the requisite clearance; 2. Any disclosure of the Confidential documents would allow a picture to emerge showing what matters are known to the Police about the activities of the Applicant or other persons of interest to Police. Disclosure could also result in the Applicant drawing inferences as to what matters are therefore not known to the NSW Police; 3. Police and other law enforcement agencies rely heavily on assistance from persons who provide confidential sources of information, including sources. Such confidential information is an important form of intelligence. If the identity of any individuals providing confidential assistance is disclosed, or such individuals were suspected (rightly or wrongly) of being confidential sources of any information in the Confidential Documents, they may be subjected to acts of retribution. There is a risk that persons, against whose interests a source has acted, would carry out reprisals against the individual who provided, or is suspected to have provided, any of the information included in the confidential material. Further, those who may otherwise have supplied information to NSW Police or other law enforcement agencies may, in the future, be deterred from doing so; that would have a detrimental effect on the carrying out of law enforcement and investigations into criminal activities. 4. There is a risk of reprisals against human sources who have provided information to Police. 5. The Confidential Documents would be subject to a claim for public interest immunity.
The Respondent also relied on Sergeant McIntyre's confidential affidavit and evidence given in a confidential hearing. Sergeant McIntyre made some amendments to his confidential affidavit, noting that it was now sworn some time ago. I do not propose to discuss any material that was presented on a confidential basis in open Reasons. Those parts of the Reasons that are not to be disclosed are identified as "[not for publication]': s 64 of CAT Act.
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Consideration

Section 49(1) of the CAT Act makes it clear that the normal rule is that the Tribunal's hearings are to be open to the public, which necessarily includes all parties to the proceedings. In reaching its decision, the Tribunal may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: s 38(2) CAT Act. However, s 64(1)(d) CAT Act provides an express exception to this, permitting the Tribunal to make an order that evidence be withheld from a party if the Tribunal considers this to be "desirable." "Desirable" is to be interpreted with regard to the basic common law precept of open justice: see State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 (Dezfouli) at [61].
The Tribunal should be mindful of the discretionary nature of s 64 of the CAT Act and that the question for the Tribunal is whether the circumstances are sufficient for the exercise of its discretion in circumstances where s 64 itself does not provide guidance as to how that discretion should be exercised. There are fundamental principles of open justice and procedural fairness: see for example Appellant S214 of 2004 v The Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 66, citing Pochi v Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247. In Bungree Aboriginal Association Limited v NSW Registrar of Community Housing [2019] NSWCATAD 61 at [26], the Tribunal stated that the starting point in deciding whether an order under s 64(1) of the CAT Act should be made is the presumption set out in s 49 that proceedings are to be conducted in public, so that, in accordance with the rules of procedural fairness, a party knows the case it has to meet.
However, in its consideration of whether to make an order under s 59 of the ADR Act or s 64 of the CAT Act, the Tribunal must turn its mind to whether it would be appropriate to make an order prohibiting disclosure of the documents because of "the confidential nature" of those documents or, more broadly, "for any other reason": see Ibrahim v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 41 at [3]. Any resultant denial of procedural fairness that would arise from the making of orders under s 64(1) of the CAT Act is not reason to avoid making such orders; that provision implicitly permits such a denial of procedural fairness: Grant v Commissioner of Police [2020] NSWCATAD 158 (Grant) at [24].
I was referred to Brennan v State of New South Wales [2006] NSWSC 167 (Brennan) where Hall J referred to the principles set out in R v Mentuck (2001) 3 SCR 442, a decision of the Supreme Court of Canada. His Honour held at [51]-[52]: 51. The issue in the present case ... is the public interest in the non-disclosure of certain information in relation to specialised investigation methodology employed by police. The open justice principle is to be balanced against that interest. 52. It is necessary in determining the issue to consider the evidence as to whether disclosure would be injurious to the public interest: ... In that respect it is relevant to have regard to: (a) the confidential affidavits in support of the claim and the grounds and reasons disclosed therein; (b) the nature of the evidence and the submissions and the contents of the relevant documents in order to determine their significance having regard to the generality or specificity of the content of the evidence, submissions or other material in determining whether disclosure would be injurious to the public interest; (c) whether the information or material is relevant to ongoing or specific future investigations; (d) whether the nature of the information or material discloses methodology, strategies or procedures in terms of detail that is not usually disclosed by evidence given in the course of criminal trials.
The principles relevant to making confidentiality orders of the type sought by the Commissioner were recently summarised recently by the Tribunal in Grant at [18]-[20]: 18. Subsections 49(2) of the NCAT Act, which authorises the holding of private hearings, and s 64(1) of the NCAT Act are to be applied bearing in mind the principle of open justice and the rules of procedural fairness. The general rule is that "[a] hearing by the Tribunal is to be open to the public unless the Tribunal orders otherwise" (NCAT Act, s 49(1)). This provision reflects the principle of open justice (CYL v YZA [2017] NSWCATAP 105 at [96]). As the Appeal Panel has commented, "the ordinary and orthodox rule in the Tribunal is that it sits in the open, the proceedings are public, and its reasons for decision are given publicly, sometimes orally, more commonly in writing" (CYL v YZA [2017] NSWCATAP 105 at [94]). 19. The Tribunal is ordinarily bound by the principles of procedural fairness or natural justice. It "may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice" (NCAT Act, s 38(2)). Section 64(1) (d) provides an express exception to this, permitting the Tribunal to make an order that evidence be withheld from a party if the Tribunal considers this to be "desirable." The word "desirable " should be interpreted with regard to the basic common law precept of open justice (State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 at [61], with reference to the predecessor to s 64(1) of the NCAT Act, being s 75(2) of the Administrative Decisions Tribunal Act 1997 (as it was then known)). 20. In Bellamy v Bellamy [2018] NSWSC 534 at [30], Parker J said, with respect to s 64(1)(d): Section 64(1)(d) is a provision which applies generally to proceedings in the Tribunal. Most proceedings in the Tribunal are ordinary adversarial proceedings and in those proceedings the rules of natural justice generally apply so as to require the Tribunal to afford various procedural safeguards to the parties. One elementary safeguard is that, except in extraordinary circumstances, the rules of natural justice prevent a party from being deprived of an opportunity to make full submissions on the issues to be decided by not being provided with all of the evidence which is before the Tribunal.
In CYL v YZA [2017] NSWCATAP 105 (CYL v YZA) which was referred to in Grant, the Appeal Panel, at [102] held that the Tribunal's power to make suppression orders is less constrained than the position at common law. The Appeal Panel adopted the reasoning in Dezfouli (which had examined comparable provisions in the Administrative Decisions Tribunal Act 1977). In Dezfouli, the Appeal Panel stated as follows at [50]-[53] and [81]-[82]: 50. Within the opening words of section 75(2) of the ADT Act (and indeed of section 35(2) of the AAT [Administrative Appeals Tribunal] Act), three elements of prime importance are the word 'desirable', the phrase for any other reason' and the word 'may'. These indicate that the purpose (or purposes) to be served by a suppression order may be 'any ... reason' (or reasons) whatever, that the power arises when the Tribunal is satisfied that the order is 'desirable' and that the actual making of the order is not mandatory but within the Tribunal's discretion. 51. There are evident and important differences between a power conferred in these terms and the common law power to prohibit or restrict the reporting of matters occurring in open court described by McHugh JA in John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 4. As set out above at [44], his Honour stated that by virtue of the principle of open justice, an order prohibiting fair and accurate reports of what occurs in the courtroom is only valid if it is 'really necessary to secure the proper administration of justice in proceedings before it'. In this statement of principle, both the purposes to be served by a suppression order and the criterion for determining whether one may be made are formulated in distinctly narrower terms than in section 75(2) of the ADT Act. 52. In a number of leading authorities dealing with suppression orders at common law, the order sought was (as in the present case) an order preventing the public identification of a person - most commonly a witness - involved in proceedings being heard in open court. Frequently (though not in the present case) the order was sought at or near the commencement of the hearing and, if the application was granted, the order made was that throughout the proceedings the person concerned should be identified by a pseudonym. 53 In such cases, the courts have applied a criterion of 'necessity', such as that stated by McHugh J A. They have, however, widened the permitted range of purposes so as to include securing the proper administration of justice generally - i.e., in future proceedings as well as in the proceedings currently being heard. … 81. It is difficult if not impossible to set out in short form all the matters that, according to the case law ..., should be taken into account in deciding whether an order should be made under section 75(2). It must suffice here simply to draw attention to the following points of relevance to our decision in this case: (a) the presumption in favour of open justice; (b) the need for an Applicant for a suppression order to establish good grounds for making the order; (c) the comparative breadth of the criterion of 'desirability'; (d) the important differences between the types of suppression order that may be made - between (for instance) an order (as in this case) prohibiting disclosure of the identity of a participant and an order that a hearing occur in closed session, without notice to a party; (e) the undoubted breadth of the range of purposes that may be served ('any other reason'); (f) the possibility that the purposes to be served may be a mixture of private and public interests; and (g) the possibility that, although generally speaking the prospect of damage to reputation or 'embarrassment' affecting a participant in the proceedings will not provide sufficient grounds for a suppression order, there may be unusual circumstances where this is the principal consideration underlying an order. 82. In the light of our examination of the authorities, we would not dispute that, for an order to be made, the circumstances should be 'special' or 'out of the ordinary' (though a requirement that they be 'exceptional' may involve setting the bar too high). But it is important to recognise that this is at most a necessary, not a sufficient, condition.
I consider that Sergeant McIntyre's evidence is sufficient to satisfy me that the circumstances at hand are sufficiently "special" so as to justify the making of confidentiality orders sought by the Commissioner, for the following reasons.
Firstly, there is significant public interest in protecting Police investigative techniques: see for example Brennan v State of New South Wales [2006] NSWSC 167 at [44]. Members of the public might speculate as to Police methodologies, but not every aspect of Police investigations finds its way into a criminal trial. Furthermore, the understanding of the public as to Police methodologies is probably largely informed by popular television programs where even the most serious of cases can be solved within an hour. As to actual Police methodologies, the process is, inevitably longer and more akin to a large jigsaw puzzle. Disclosure of what is known by Police in assembling that "jigsaw" may lead to a disclosure of what is not known (or "the missing pieces" to continue the analogy), with the consequence that those engaged in criminal activities (or their associates) might adjust their behaviour to avoid Police detection. I am satisfied that disclosure of the confidential material before me would be likely to have a real effect on Police ongoing investigations.
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Secondly, there can be no doubt that there is a significant public interest in protecting the confidentiality of Police sources and not disclosing information concerning sources: see, for example Fisher v NSW Police [2002] NSWADT 267, at [34]; and Simring v Commissioner of Police [2009] NSWSC 270, at [69].
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At a glance

Court

Decision date

Before

Source

Judgment (9 paragraphs)

Parties

Cases Cited (13)