Young, Michael Jerome, the Special Minister of State v Quin, Eric Adrian & Ors [1984] FCA 329

Federal Court of Australia|1984-10-12|Before: Wilcox J

ADMINISTRATIVE LAW - Administrative Decisions (Judicial Review) Act - Committal proceedings - Discretion to review - Claim for public interest immunity - Evidence sought to be elicited in cross-examination - Affidavit of police officer claiming immunity

Whether magistrate may permit cross-examination of police

Administrative Decisions (Judicial Review) Act 1971 5.5

MICHAEL JEROME YOUNG, THE SPECIAL MINISTER OF STATE V ERIC ADRIAN QUIN & ORS G.296 OF 1984

MICHAEL JEROME YOUNG, THE SPECIAL MINISTER OF STATE

Direct that unless a Notice of Appeal is filed in the

meantime exhibits may be handed out at the expiration of 21 days

' NEW SOUTH WALES DISTPICT PFGISTRY No. G.296 of 1984 GENERAL DIYISTON BETWEEN: MICHAEL JEROME YOUNG. THE SPECIAL MINISTER OF STATE Applicant AND: ERIC ADRIAN QUIN

CORAM : WILCOX J DATE: 12 OCTOBER 1984 PLACE; SYDNEY

Eric Adrian Quin, the first respondent. is a Stipendiary Magistrate currentlv hearing committal proceedings brought bv the fifth respondent, the Director of Public Prosecutions. against

the second, third and fourth respondents, Tina Wong, David Yuna

Te Chow and Charoen Rirasatik. The charges against the three accused persons all relate to the alleged involvement of those

persons with heroin during the month of April 1984. The precise details differ but in each case there are charges under s.233B of Australia, of being knowinaly concerned in the importation into Australia of heroin and either ot having possession, or of attempting to obtain possession. of heroin. In addition, there are various charages under the Enoisons Act (NSW) 1966 of

The material before me as to the nature of the allegations made against the accused is sparse but counsel for the Director of Public Prosecutions aave an outline of the prosecution case: on 19 April 1984 a Thai national, identified by name at the committal proceedings but generallv referred to as "the courier": entered Australia on a fliaht arriving at Svdnev airport; he brought with him a suitcase; he took 1t to a motel, where he met some police officers: they found it contained a substantial quantity of heroin which thew unpacked: they repacked it with a small, though trafficable. quantity of heroin and with

plaster of paris: they kept the suitcase under surveillance and, over the ensuing 10 days, it led them to each of the three accused persons each of whom either had, or sought to obtain.

Evidence has been given to the learned magistrate, during the course of the committal proceedings, by Detective Serqeant Ward of the Australian Federal Police Drug Unit. During cross-examination counsel for the accused took him to a number of matters relating to the circumstances in which the offences are said to have occurred. The matters which have already arisen, or which are forecast to be raised by counsel for the accused,

Whether the courier was a Thai police informant/aqent:
Whether an interpreter used by the Australian Federal Police was a Thai police officer;

The positioning of various cameras used in police surveillance of persons involved in the matter:

Whether the courier was paid any money by police or anv

The authority by which the courier entered and left Australia;

8, The whereabouts of certain monevs said to have been

qiven to the courier: 9. The frequency and extent of the movements in and out of

It is said by counsel that these matters are relevant to the committal proceedings because the answers may show that the drudas the subiect of the charges were not in fact imported or

they may reveal one or more of what are said to be "defences" of entrapment or bias. The prosecution has indicated that it does not propose to call the courier to give evidence before the

Obiection was taken to the cross-examination of Detective Serqeant Ward in relation to the matters [ have mentioned. In support of that obiection there was tendered to the Magistrate an affidavit sworn bv Detective Chief Inspector, JF Wheatlev, the officer in charge of the druq operations unit in New South Wales of the Australian Federal Police. Detective Chief Inspector Wheatley deposed to the existence of reqular co-operation between police forces in various countries in relation to the drug trade. In his affidavit he expressed the opinion that to permit questions in relation to the matters I have mentioned would be undesirable in the public interest because the answers might reveal police methods of operations ta the prejudice both of future activities of the Australian Federal Police and of relationships with overseas police forces. He also expressed concern that the revelation of information reaardina surveillance of drudq offenders would be likelv to assist those in the drug trade to mount counter surveillance and would endanaer

the life or safety of informants and law enforcement officers.

There was initially a question raised on behalf of the accused before the magistrate as to whether Detective Chief Inspector Wheatley was an appropriate person to invoke the immunity which used to be called Crown privilege but is now usually referred to as "public interest immunitv": see Rogers v Home Secretary (1973) AC 388 at pp 400, 406-407, 412. Sankey v Whitlam (1978) 142 CLR at pp 38, 95 and Alister v The Queen

(1984) 58 ALJR 97 at p 98. In Duncan vy Cammell, Laird & Company

Limited £19423 AC 624 at p 638 Viscount Simon LC. speaking for a

unanimous House of Lords, described as an "essential matter" that

the decision to obtect should be taken bv the Minister administering the Department of State responsible for the relevant area of public interest or, in exceptional circumstances, his Permanent Head: see for an example of such

circumstances Air Canada _v Secretary of State for Trade £1983] 2

WLR 494. That view was closelv related to the doctrine that a

certificate in proper form was conclusive: see Duncan v

ammell, Laird and Co at pp 642-643. The conclusiveness of the

certificate was denied for the purposes otf Enalish law bv the decision of the House of Lords in Conway v Rummer (1968) AC 910 and for Australian law'bv that of the High Court in Sankey_v Whitlam. In both of those cases the point was made that the invocation of public interest immunity did not depend upon a certificate from a Minister or other government otficial: any party could take the point and, indeed. it was the duty of the court itself. even in the absence of an intervention by a partv,

to consider in appropriate cases whether evidence should be

excluded on this aground. It follows that a claim made bv anv

informed person, and especially a person having official

responsibilities in the relevant area, must be considered by the

court on its merits. It was no doubt because of those

circumstances that counsel for the accused did not continue to

press any point about the status of Detective Chief Inspector

However, counsel did not concede that the claim for

immunity was justified or that 1t would be a proper course for

the magistrate to accede to it. Thev claimed the right to

. . . it seems to me that the qeneral law applies, namelv, that the issue of admissabilitv of the material sought to be withheld on the basis of the public interest should be the subject of a trial. that isa trial within a trial of that very issue. that each party should have the right to call and examine witnesses and to cross-examine those, if anv, of the opposite party. It is then for the tribunal before which such a trial proceeds to fix the circumstances in which the trial should proceed so as to avoid the general dissemination of the so-called 'immune' material which turns out ultimately to be immune. 1 am not 'convinced the defence counsel has the ridht to cross-examine a witness called in such a trial on a qeneral issue. That is in the qeneral 1ssues in these particular circumstances raised in the committal proceedings. He is, ... restrained by the rules of relevance. ... the defence in these committal proceedings should have the benefit of cross-examination of the author of the affidavit which has been

tendered and of any other witness who may be called on the issue of non-disclosure in the

At the request of the prosecution the magistrate has deferred qivina effect to that ruling. and has proceeded with

other evidence. pendina the opportunity for review in this Court

The applicant, the Special Minister of State. 1s the Minister responsible for the operations of the Australian Federal Police. He has filed an Application in this Court. under the Administrative Decisions (Judicial Review) Act 1977, seekind review of the decision of Mr Quin, as set out in the extract quoted above. He also seeks an injunction restraining Mr Quin from permitting the cross-examination of Detective Chief Inspector Wheatley upon his affidavit and an order staying the

committal proceedinas insofar as thev involve the qiving of any evidence which is claimed in the affidavit of Detective Chief

Inspector Wheatlev to be privileqed on the grounds of public

unreported) I referred to the substantial number of decisions.

both in this Court and in the Supreme Court of New South Wales. in which the view had been expressed that it is qenerallv undesirable for a superior court to intervene in relation to the decision of a magistrate to commit for trial and. a fortiori, in

relation to a matter still before the magistrate. The leading

authority. in this Court. in relation to that latter situation. is Lamb v_ Moss (1983) 49 ALR 533 at p 564 in which a Full Bench

of this Court held that the power to make an order of review

under the Administrative Decisions (Judicial Review) Act in

respect of committal proceedings "Should be exercised only in

most exceptional cases, especially in respect of a decision in the course of proceedings", That approach was recently applied by a Full Bench of the Court (Fox, McGregor and Beaumont JJ) in

Choo Chena Kur v Quinn (25 September 1984 unreported). It has

been endorsed on a number of occasions in the High Court of

Australia: see Sankev v Whitlam in which both Gibbs ACJ at p 26

and Mason J at pp 81-82 refer to the necessity for a "special

reason" to intervene. The Queen v_ forlano (1983) 58 ALJR 22 and

Clyne v Director ot Public Prosecutions 13 September 1984,

Litigation concerning the correctness of a ruling of a magistrate made in the course of committal proceedings mav turn out to be merelv unncessarv; perhaps because ot evidence which subsequently emerges in the proceedings or because of a course taken by one or other of the parties. It is much more likely that such litigation will be actually detrimental to the orderly progress of the matter; causing a degree of delay inconsistent with the tust and efficient administration of the criminal law. Although it is undesirable to attempt any exhaustive statement of the circumstances in which a ludicial discretion should be My

exercised it seems to me that it would normally be undesirable to

enter into review of a maqistrate's ruling on a matter of evidence except where the ruling related to a genuine and important question of legal principle not dependent upon the detail of the evidence in the particular case. Sankey v Whitiam

Counsel for the applicant arque that the present is such acase. They contend that a deponent to an affidavit claiming public interest immunity may not, as a matter of law, be required to undergo cross-examination by parties to the litigation in respect of which the immunity is sought, that the magistrate erred in failing to give effect to that rule and that there is a

substantial public interest - both in relation to this case and generally - in the matter being considered at this stage by a superior court. As they say, the proposition. in the absolute form for which they contend, does not depend upon the detail of this case; it would apply equally to anv affidavit in any litigation, criminal or civil, in which a deponent puts before a court matters of fact or opinion for the purpose of persuadina the court to exclude evidence upon public interest grounds, Moreover, counsel argue, there 1s no direct authority in point so that 1t is appropriate that the opportunity be taken to rule upon

I think that these arquments do furnish qrounds for this

Court to exercise its discretion to review the maqistrate's

ruling. If the correct view is that no cross-examination of a

deponent to an affidavit claiming privilege may be permitted, then the Court is in a position to apply that principle to Detective Chief Inspector Wheatley: nothing will turn upon the precise circumstances of this case. If, on the other hand, there 1s no such principle, then it will be for the magistrate to determine, in relation to this particular case and as it develops before him, the extent of cross~examination, quided by such

qeneral statements of principle as may appropriately be made.

There is a paucity of reported judicial reasoning in relation to the cross-examination of a deponent to an affidavit claimina public interest immunity. One reason. no doubt. 1s that the question could not arise in a context in which the certificate of the responsible Minister was required to he treated by the court as conclusive. Onlv in recent years have the courts unequivocally asserted an entitlement to examine tor themselves a claim to immunity. Moreover, and this is perhaps more sianificant, a claim to public interest immunity usually arises in relation to documents. In such a case an available course to be taken. once the question does arise, is for the court itself to consider the documents, as happened in many of the leading cases including Conway _v Rimmer, Sankey v Whitlam and

Burmah Oi1 Co Limited v Bank of England £19801 AC 1090 and more

recently in Alister. Where the nature of the document is in contest, inspection is likely to be a more satisfactory course than cross-examination of the claimant for immunity. In other

cases, where the claim is based upon the fact that the document

is within a particular class of documents. it may not be

necessary for the court itself to examine the document; it may be enough that it is satisfied that the document does fall within

the relevant class: see the discussion on inspection by the

court in each of Burmah Oil and Air Canada and also Lanyon Pty

Limited v The Commonwealth (1974) 129 CLR 650 at p 653. But, if there 1s a doubt whether the documents are within the class.

However, as Gibbs ACJ pointed out in Sankey v Whitlam at p 38. the principles relating to public interest immunity applv un relation to oral as well as to documentarv evidence. In the

case of oral evidence the problem 1s less easily resolved. Where the relevant evidence 1s intended to be elicited in chief, it may be practical for the court to consider the matter on the basis of an outline by counsel of the nature of the evidence proposed to be led from the witness: perhaps a proof of the anticipated evidence can be supplied to the court. In the case of evidence sought to be adduced in cross~examination the difficulty is more pronounced. The cross-examiner - particularly in committal

proceedinas where a deal of 'fishing' 15 customary - will often

be unable to say in advance what evidence is likelv to emerge from his line of questions or to say where those answers are likelv to take him in relation to further questions. He mav be unwilling to reveal in advance. publicly or even to his opponent, his line of questioning. In such a case the presiding officer

has no alternative but to rule upon each disputed question as 1t

arises. But, in Just such a case. he may be especially assisted by an atfidavit sworn by an informed responsible person which puts into context the matters likely to be canvassed and which

will qive him a basis for considering whether a particular question is likelv to result in the disclosure of evidence which

claiming privilege was sworn by the Minister of Transport. The circumstances were unusual in that the Treasury Solicitor had caused immunity to be claimed by a party, the British Railways Board, at the instance of the Permanent Secretary and before the Minister had himself considered the matter. All concerned accepted that the Minister's objection, 1f properly taken, was conclusive but the opposing party arqued that, in the circumstances. the Minister's affidavit was defective: it did not demonstrate that he had formed a fresh. unbiased opinion on the matter. Moreover. the objection was a class claim and the affidavit did not identifv the relevant class. That party submitted that the documents ought to be required to be produced unless the Minister submitted to be cross-examined on his

"I do not doubt that I could make such an order - and I should not hesitate to do so if I thought that the Minister was displaying any lack of candour or any tendency to prevaricate. But there is no question of anvthing of that sort in this case, and in

these circumstances I think that for me to force the Minister to submit to

cross-examination on these points at this stage would be wrong and might well create a totally false impression ot the position." His Lordship went on to make an order that if the Minister wished to obtect to production he should file a further affidavit dealing with the matters raised. The applicant for

discovery appealed. Harman LJ. with whom Donovan Ld and Russell

", . . the judge said when it came before him that he did not doubt that he had jurisdiction to order cross-examination if he thought it was a proper case for it and I need not quarrel with that view todav".

I am aware of only one reasoned decision in relation to the cross-examination of a deponent to an affidavit claiming public interest immunity; the unreported decision of the Workers' Compensation Commission of New South Wales in Registrar of the

Workers Compensation Vommission ot New South Wales v FAI

Insurances Limited (26 November 1979). In that case the Chairman

of the Commission. in his capacity as Chairman of the Insurance Premiums Committee, had sworn an affidavit claiming immunity in relation to the production of certain documents relatinag to insurance. Counsel for FAI Insurances Limited claimed to be entitled to cross-examine the Chairman upon his affidavit. This

"If a respondent has an unfettered ridght to cross-examine the Chairman on an affidavit

such as this, I do not see how any restriction could be placed on the right

other than by reference to questions of relevance. It seems to me that cross-examination, restricted only by

considerations of relevance, could result in the disclosure of the contents of the very documents for which protection is sought.

It is mv view that 1t is for the Judge. and not for the parties, to determine what evidence should be sufficient to resolve the

claim for privilege, and it is for the Judce to determine by what means any deficiency in the evidence or material should be remedied to the end that the evidence should be sufficient for him properly to decide the

question. but that the means of providing the evidence, and deciding the question, should

not be such as to endanger the non-disclosure until such times as the Judge orders the disclosure to be made." This decision is not. of course. as a matter of precedent, binding upon this Court although any view expressed bv

McGrath J is entitled to respect. The protagonists on each side of the instant litigation claim that what was said in the FAI case supports their submission but it 15 important to note that the actual question in that case differs from that before me. The issue for McGrath J was whether a court is bound to permit cross-examination on behalf of a party claiming to suffer disadvantage by denial of access to documents in relation to

which a claim of public interest immunitv had been made. The

issue before me is whether a court is entitled to permit cross-examination of the deponent by the party claiming to suffer disadvantage. The authorities are clear that in relation to the question of public interest immunity the court is required to play an unusually active part. The court does not - as in

relation to many other evidentiary matters - act as a mere umpire

to determine issues raised by the parties. Once the question

arises it is for the court to resolve, reaqardless of the attitude of the parties. In Conway v Rimmer at p 971 Lord Morris said that "the inherent power of the court must include a power to ask for a clarification or an amplification of an objection to production".It is consistent with the concept of judicial initiative 1n this area that the court may be entitled, although not bound, to receive evidence elicited under cross-examination by way of clarification or amplification of the basis of the

claim for immunity. Cross J, in Grosvenor Hotel, appears to have regarded clarification by way of further affidavit evidence and clarification bv wav of cross-examination to be equally available options and I do not understand Mc Grath J to have taken a different view. On the contrary, his refcrence to it beina "for the Judge . . . to determine what evidence should be sufficient .

. (and) by what means any deficiency in the evidence or material should be remedied" 15 a clear assertion of the right of

the court to select the appropriate procedure to resolve the

Although I am not aware of any case, other than FAI, in which there has been a reasoned decision in relation to the cross-examination of a deponent to an affidavit claiming public

interest immunity, I am aware that, at least in New South Wales

since Sankey v Whitlam. judges have not infrequently allowed

cross-examination ot such deponents. Indeed, 1t appears that

this course was allowed to be taken in the New South Wales Court

of Criminal Appeal in The Queen v Bebic (Samuels JA, Nagle CJ at CL and Cantor J, unreported 14 October 1982). The matter is nentioned, although the issue 1s not discussed. at p 61 of the reasons of the Court. The applicant says that such a course is incorrect, that the question of disclosure 1s one between the court and the claimant for immunity alone. in relation to which a party has no standing. He is not entitled to cross-examine even at the invitation, or by the permission, of the court: he is not even entitied to put submissions to the court as to the course

I find nothing either in authority or in principle to justify such an extreme position. As Lord Reid pointed out in Conway v Rimmer at p 953, the parties see the reasons advanced by the claimant for immunity; although, there mav be exceptional cases, as in Bebic, (judgement on privilege 27 May 1982 pp 4-5) where a court will refuse disclosure to the parties of the affidavit claiming privilege. The reason tor the general rule is that the parties have a legitimate interest in knowing what is the basis upon which material possiblv relevant to their litigation is to be withheld from disclosure. To the extent of the permitted disclosure, the parties have alwavs been recarded as entitled to put submissions on the validity of the claim for immunity and to appeal:against an unfavourable ruling on that question. It is true that the leading authorities recoanise that, in making a decision as to whether documents should be

produced, the court may have to consider the documents in private

and without the benefit of submissions on behalf of the parties.

However, the reason 1s not that the content ot the documents is no business of the parties but rather that the production of the documents to the parties. or even to their legal representatives. would have the effect of disclosing material which the court might ultimately hold should not be disclosed. The iudgement in Alister of Gibbs CJ, Wilson, Brennan and Dawson JJ. delivered after the Court had inspected the relevant documents, is 1rlluminating. At p 124 their Honours referred to their inspection and their view that none of the documents was relevant to the issues at the trial or could have been used for the

purpose of cross-examinina the Crown witnesses. They went on:

"When we sav that, we do not discount the sianificance of the arqument that the parties mav be more able than the members of the court to discern the possible relevance of material in a trial of this kind, but we remain satisfied that the material would not assist the appellants ....

the disposal of anv point in litigation, without the fullest argument on behalf of the part1les, 1S a course to which every court reacts adversely, however untenable the point in issue may first appear. and however unlikelv it is that arqument will assist it. the present case evokes the same reaction. but it is the inevitable result when

privileqe 1s riaghtly claimed on arounds of national security".

these comments would have been quite inappropriate if the situation were that the parties not onlv had no entitlement to see the documents but that the court had no discretion to give

access to them tor the purpose of considerina the claim to

immunity or to hear them on that question. Murphy J thought that counsel for the parties should have been allowed to examine the documents in order to assist the Court on the question whether

those documents would have assisted the defence at the trial.

There is no reason of principle for adopting a rule

excluding the parties from participating in the determination of a claim to public interest immunity. The position will always be that at least one of the parties will perceive himself to have an active interest to obtain access to the relevant material in the

hope that it may be used to assist his case. As Lord Reid

pointed out, in Conway v Rimmer at p 940, the determination of public interest immunity involves a contest between the "public interest that harm shall not be done to the nation or the public service by disclosure of certain documents" and 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." There can only be advantage toa court in having the maximum possible assistance in makina a judgement as to which element of the public interest is to be accorded priority in a particular case. It is in the interests of the court to have the fullest possible information, perhaps assisted by the submissions of counsel retained on behalf of the claimant for immunity, in relation to the weight of that claim: reflecting the first of the two elements of public interest mentioned by Lord Reid. Similariv, it is in the interests of the

court to have the fullest possible assistance, subject only to

the avoidance of undesirable disclosure of the disputed material,

from representatives of the parties in relation to the case for disclosure; the parties beina especially able to assist in

relation to the weight of Lord Reid's second element of public interest. The parties may be able to assist the court by

submissions that the documents are not of a class appropriate to be accorded any immunity or, if they have had access, that a particular document ought to be disclosed either because its content does not require suppression or because any case for suppression is outweighed by the importance of the information to

It seems to me that similar considerations apply to the cross-examination of a deponent to an affidavit. In manv, perhaps most. cases there will be no occasion for oral evidence: the affidavit will be clear on its face and the court will be in a position to make a ruling. In other cases the court may "ask

for a clarification or an amplification of an objection to production". I see no reason to tie the hands of the court as to the manner in which it obtains such clarification or amplification. Perhaps, as in the Grosvenor Hotel case, the court will seek a further affidavit but this may not always he the best way of obtaining the requisite information. The court may prefer to ask specific questions of the claimant in order to obtain a better understanding of the basis of the claim. the

nature of the material in respect of which the objection is taken

or the manner in which it is said that the public interest will

be jeopardised. As a general principle, there is no reason to deny to the parties to the litigation the opportunity of hearing any oral evidence which is given in clarification or amplification in response to questions from the court; they would, after all. usually see any further affidavit required by the court. Submissions on behalf of a party as to the validity of the claim may include criticism of the sufficiency or precision of the claimed basis for exemption. Such submissions may persuade the court to put further questions to the claimant. If such matters may be raised by counsel for a partv indirectly with the claimant, it is difficult to see anv reason to deny to the court the option of allowinag counsel to raise the matters directly by way of cross-examination of the claimant. It seems to me that the fundamental rule is that 1t is for the court to determine the course appropriate to be taken in the particular case having regard to two general principles: that care should be taken to ensure against any disclosure of the information in relation to which immunity is claimed unless and until the court has determined that the claim 1s without foundation or that the anterests of justice require the claim to be overridden and the

information disclosed and that, to the maximum extent possible,

the parties to the litiaqation should be permitted to participate in the determination of their right to have access to information

pertaining to the case. As Bebic illustrates, the appropriate

procedure may range all the way from permitting the parties to

cross-examine the deponent, and to put to the court submissions on his claim, to the other extreme of denving to the parties any

The applicant contends that, as a matter of law, the

magistrate is precluded from permitting cross-examination of Detective Chief Inspector Wheatley. This submission goes too far and must be rejected. It does not follow that the magistrate is bound to permit cross-examination. I respectfully aqree with McGrath J that he is not so bound. Both considerations of principle and such guidance as the authorities afford indicate that it is for the magistate to determine whether he would be assisted by questions directed by representatives of the parties to Detective Chief Inspector Wheatiey relating to the basis of

the claim made by him and the extent of any such questioning.

In determining those matters he will take into consideration any difficulty he may find in understandinag the nature of the public interest relied upon by Detective Chief Inspector Wheatley or the detriment which would flow from revelation of information about police techniques and contacts. It may be that, upon further reflection, the magistrate will conclude that there is no such difficultv, so that cross-examination is not necessary; but that is a matter for him. And, of course, if the magistrate does decide to permit

cross-examination upon the basis of the claim it will be his

responsibilty to ensure that this cross-examination does not itself expose the information in relation to which the claim for immunity is made. That information should only be revealed as a result of a deliberate decision to that effect either rejecting the claim for immunity or holding that the detriment to the public interest involved in the disclosure is outweighed by the benefit to the public interest in having this information avarlable to the parties for the proper administration of justice

It is not clear to me what was intended by Mr Quin in his reference to the receipt of evidence from other parties. in opposition to the claim for immunity. and the holding of a "trial within a trial". The magistrate may have had in mind a procedure such as that sometimes adopted in relation to an objection to the admissibility of confessional material based upon alleged duress, in relation to which evidence is given on each side on the issue of voluntariness: the voir dire. If so, I think that the analogy could be misleading. In such a case a party has a right to litiqate the admissibility of the material which right may only be able to be exercised by adopting such a procedure. In the instant case there 1s no such right. Consistently with the emphasis in the authorities upon the importance of procedural flexibility, to meet a diversity of cases, it would be wrong to rule out the possibility of a court receiving evidence called by a party aqainst the claim for immunity. For example: it may be

that a party could produce evidence to show that the person

claiming the immunity did not hold the official position he claimed and which was necessary to enable him to say that the relevant documents fell within a particular class; a party may be

able to show that the information had been so widely disseminated to the public that suppression was pointless: see per Stephen J

in Sankey v Whitlam at p 64. In the rare case of evidence,

relevant to the determination of the claim for immunity, being offered by a party I see no reason why the evidence should not be admitted by the court, and subjected to any appropriate cross~examination. To that extent there will be a procedure which might be described as a "trial within a trial" but the anternal trial will be of limited ambit and is likely to be of

The magistrate stated in his reasons that he was "not convinced" that the defence counsel had the right to cross-examine a witness in the "trial within a trial" upon the qeneral issues in the case. I take this statement to bea response to the claim made before me, and apparentiv put to the maqistrate, that the defence were entitled to cross-examine Detective Chief Inspector Wheatley not onlv in relation to the foundation of his claim to public interest immunity but also in relation to the circumstances surrounding the alleged offences. I have already expressed the view that counsel have no right to cross-examine at all but merely an opportunity to cross-examine to the extent that the magistrate may permit. in the exercise of

his discretion as to the appropriate procedure. But 1f the

magistrate does permit cross-examination, that cross-ecxamination must be restricted to the issue in relation to which the permission is given. It is in relation to that 1ssue onlv that

Detective Chief Inspector Wheatley would be a witness before the

magistrate. Such a view accords with the course taken at a criminal trial in which the 1udge holds a hearing on the voir

dire to determine the admissibility of confessional material. He

does so in the absence of the jury, hearing evidence which qoes to the ruling as to admissibility which he will have to make:

see MacPherson v The Queen (1981) 147 CLR 512 at pp 523, 542-543.

It would not accord with usual practice for counsel for the defence to be permitted to require a person called bv the prosecution as a witness only on the voir dire to return for further cross-examination 1n the presence of the jury in relation to the qeneral issues in the trial. To allow such a course would : be to erode the responsibilitv of the prosecutor to determine

what witnesses will be called in his case on the qeneral issue in

subversion of the principles enumerated by the High Court in The

Queen v Apostilides (1984) 58 ALJR 371. It would make the extent

of the accused person's riaght to adduce evidence by way of cross-examination depend upon the identity of the person who happened to take the obiection as to public interest immunity. And the threat of such a course mav, 1n an unusual case. deter from doing so a person whose duty it was to draw to the attention of the court a claim for public interest immunitv. I agree with the magistrate in reiecting the submission of counsel for the

respondent accused persons that cross-examination of Detective

Chief Inspector Wheatley. 1f permitted by the magistrate, may extend to matters relevant to the proceedings generally but not relevant to the issues of public interest immunity raised by his

During the course of argument counsel for the second and fourth respondents indicated the basis upon which it was arqued that matters sought to be put to Detective Chief Inspector Wheatley, and indeed to Detective Sergeant Ward, were relevant to the general issues before the magistrate. In respect of many of these matters, I have considerable difficulty in detecting anv relationship between the questions soucht to be put to the witness and any 1ssue which the magistrate will have to determine. Moreover, 1t is difficult to see that some of the matters would be within the personal knowledge of the witness. I have an impression that some of the questions would only be answerable on the basis of hearsay information. There is, of

course, no suagestion of the questions being admissible upon the

basis of eliciting admissions; these officers are not parties. However, consistently with the view I have expressed as to the role which this Court should exercise in relation to commzuttal proceedings it is inappropriate for me to pursue these matters.

If objection is taken, questions of relevance and admissibility

will be for the maqistrate to determine. Only if he 1s of the view that a question is relevant to, and otherwise admissible in, the proceedings before him will it be necessary for him to

consider any issue as to whether the question should be rejected

as tending to elicit evidence the subject of public interest

The views which I have expressed lead to the conclusion that the applicant is not entitled to the relief which he seeks.

The Court has power, under s.16 of the Administrative Decisions

(Judicial Review) Act, to make a declaration of rights or an

order by way of injunction. A formal declaration of rights 1s rarely appropriate in relation to a determination upon a procedural question and it is not necessary in this case; mv reasons will speak for themselves. Still less would it be appropriate to make an iniunction moulded to reflect mv view as to the extent of permissible cross-examination. I need simply

The applicant has failed in 1ts fundamental submission of law but the result is well removed from that contended for on behalf of the second and fourth respondents - the third respondent not appearing. Indeed 1t mav be that, in its practical effect, mv ultimate view is more favourable to the position adopted by the applicant than to the second and fourth respondents. In the whole of the circumstances I am of the opinion that there ought to be no order as to the costs of the Application.

I certifv that this and the *+ - ~") fee (+7) preceding pages are a true copy of the

Reasons for Judaement otf his Honour Mr Justice Wilcox. °

At a glance

Court

Decision date

Before

Source

Judgment (196 paragraphs)

Cases Cited (6)