Z v New South Wales Crime Commission [2005] NSWSC 1388 | Case summary

Z v New South Wales Crime Commission [2005] NSWSC 1388 | Case summary | Zoe

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Factual Background 4 On 1 September 2003, pursuant to s.25(1)(a) NSWCC Act, the Management Committee of the Commission granted to the Commission a reference code-named "Tenterfield" to investigate the attempted murder of M on 28 November 2002. 5 On 19 September 2003, the Commission served on the Plaintiff a summons under s.16 NSWCC Act requiring him to attend before the Commission and give evidence pursuant to the reference. 6 The circumstances giving rise to the Commission's summons to the Plaintiff, and his response to certain questions directed to him by the Commission, have been the subject of earlier proceedings in this Court where it was held that legal professional privilege could not be relied upon to refuse to reveal X's identity: B v N (Grove J, 5 February 2004, unreported) and Z v N [2004] NSWCA 445. For present purposes, part of the background may be obtained from the judgment of Grove J at paragraphs 4-5: "4. The plaintiff is now a practising barrister. Of relevance are events which occurred when he practised as a solicitor. At social functions hosted by a friend [Y] of the plaintiff, the plaintiff made acquaintance of a person whom I will refer to as 'X'. In about October 1998 X made an appointment to see the plaintiff, saying that he or she had found out that the plaintiff was a lawyer through the host of the social function. The gender of X is undisclosed and to avoid repetition of the alternative I will hereafter use the masculine form of pronoun to include either gender. 5. X said that he had observed things at the home of M and wished information to be passed to police without disclosing X's own identity. He sought advice as to how this could be done and what consequences might follow. On X's instructions the plaintiff telephoned various law enforcement agencies eventually speaking to a police officer to whom he indicated that a person who was not prepared to be identified wanted to supply information which may be of interest. The officer responded that he would receive the information. X was present with the plaintiff who conveyed to the officer that at M's house X had recently seen him 'showing off' a quantity of drugs, that M had a gun and that he had two children of approximately primary school age." 7 Having regard to the matters which I have to determine, it is appropriate to set out the Plaintiff's account of the conversations which he had with police officers in about October 1998 (Affidavit of Z affirmed 19 November 2003, paragraphs 11-13): "11. I then telephoned the police with X in my presence. To the best of my recollection I telephoned the Australian Federal Police and what was then known as the Drug and Organised Crime Strike Force, Crime Agencies, NSW Police Service. To the best of my recollection I was eventually assisted by officers at Campsie Police Station. In total I made approximately 5 telephone calls (together these telephone calls are referred to as the 'First Occasion'). 12. I had a conversation to the following effect with each police officer to whom I provided information: Z: 'A person who does not wish to be identified has approached me with information which the police might be interested in. Whether that impedes you from taking action is a matter for you, but the person is not prepared to provide the information if the person's identity is to be disclosed'. Police: 'We can protect the person's identity'. Z: 'I know. However, despite that, the person is not prepared to disclose the person's identity. The question then is: Do you still want the information?' Police: 'Yes'. 13. To the best of my recollection, in my opinion at the time, attempts were made by police with whom I spoke to elicit information from me which could assist the police in later identifying X. For example, I was asked to the effect: 'How does X know M?', 'How well does X know M?' and 'Why is X giving this information?'. I refused to answer those questions because (i) in some cases, I had specifically raised with X before the telephone calls the possibility of being asked such questions and X had instructed me not to answer and (ii) in other cases, I refused to answer because in my opinion the answers could assist to identify X". 8 Acting on the basis of the information received from Z, on 1 October 1998 police obtained and executed a warrant authorising the entry into and searching of M's home. A search of M's home was undertaken, but no illegal drugs or firearms were found. 9 On 9 October 1998, M, his wife and his father, accompanied by a solicitor, a relative of M, attended Ashfield Police Station and surrendered 414.7 grammes of cocaine (with 43% purity) and a silver semi-automatic .32 calibre pistol. They advised that M's wife had found these items in a wardrobe in an upstairs bedroom of their house whilst she was cleaning. 10 On or about 16 March 1999, X again attended upon Z. On X's instructions, Z passed on information to an Australian Federal Police officer that M was said to be in possession of one kilogram of heroin and a handgun.

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16 On 30 April 2003, Z sent an email to police in the following terms: "I refer to our meeting on 12 March 2003 (along with Detective Davey) and to your recent telephone message. I have considered your request for assistance. Having discussed the matter with my colleagues, I am not willing to provide the assistance you requested. I am bound not to reveal a protected confidence or protected identity information. Further, in light of the apparent attempt on M's life, to assist you with this line of inquiry would necessarily expose me and my family to risk of harm, in addition to stress that would be placed on my family. I do, however, wish you success in your investigation. Please contact me by telephone or email if you would like to discuss this matter further". 17 In answer to the summons issued on 19 September 2003, the Plaintiff attended on 24 September 2003 and gave evidence at a private hearing of the Commission. In the course of that evidence, he was asked to identify X, but he declined to do so, relying upon legal professional privilege. The Commissioner overruled the Plaintiff's objection and directed that he answer the question. In the course of the Commission hearing on 24 September 2003, the Commissioner said to Z (Transcript, pages 17-18): "I am not prepared to say that the name will not be disclosed to a police officer in any circumstances. It is not the purpose of the exercise at the moment to give the name so that it can be conveyed to a police officer, the purpose of the exercise is to get the name so that we can know where to go with the investigation. As I mentioned earlier, there is at least a suspicion that the information was provided to you for the purpose of you providing it to the police so the police would take action, contrary to the interests of M, - in circumstances where the action by police was not justified on the basis of the facts, but only on the basis of the allegation and that with an allegation that M may have been set up, loaded or whatever. However, I will give you an undertaking that we will act responsibly in relation to the information and it may be that having got the name we need to speak to whoever the person is. But it may also be, having got the name, it would be better that we should not in the interests of advancing the investigation, because it may be that this person is a person who, if notified of our interest or whatever, may take steps to compromise the investigation. So really, what I need first is the name and then to make a decision about what to do with that information." 18 The proceedings before Grove J, and then the Court of Appeal, involved an application for an order of review under s.19(2) NSWCC Act with respect to the Commissioner's decision concerning a claim of legal professional privilege. Grove J held that the communications in question were not privileged communications, but that even if they were, that s.18B(4) enabled the Commission to require Z to reveal the name and address of X. His Honour dismissed the Plaintiff's summons. On 19 November 2004, the Court of Appeal dismissed with costs an appeal from the decision of Grove J. 19 On 29 November 2004, the Plaintiff attended the Commission's premises pursuant to a s.16 summons. At that time, an adjournment of the hearing was sought by him and granted.

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21 The Commissioner heard submissions concerning the first ground of "reasonable excuse" (the public interest immunity ground), and gave the following decision (Transcript, page 22): "Now, on the public interest immunity ground, based on what I've said, unsurprisingly, I suppose, I accept the submissions of Mr Singleton and for the sake of brevity, I don't propose to repeat those, except for one qualification. I think there is also some old law that says that the categories of public interest immunity are not closed, and I think that issues about risks to even intermediaries or conduits is one that might be taken into account, and if it were found that that was an appropriate matter to be taken into account, I don't think it would tip the balance in favour of non-disclosure to this Commission. Therefore, based on that public interest immunity objection, I would direct the witness to answer the two questions that were put to him. But, as I understand it, at least from the witness, there are other grounds of objection to answering those questions and you no doubt know what they are and perhaps you could tell us". 22 Z then gave evidence in support of his second ground of "reasonable excuse" (the fear of reprisal ground). Z gave the following evidence commencing with a reference to his email of 30 April 2003 which is set out in paragraph 16 of this judgment (Transcript, page 22-24): "As stated in the email which is Annexure 'B' to Exhibit 1 that's in front of me, I fear for the safety of my family, my wife and two children and also for myself. As I understand it, the hope of the investigating officers is that if I give the name and address of Mr 'X' that that will assist their inquiries in that Mr 'X' might be the person who pulled the trigger against M or associated with other persons who pulled the trigger and perhaps information which was provided back in I think, 1998, is consistent with an adverse motivation towards M, if indeed I do provide the name and/or address or other information by which Mr 'X' could be identified. If I provide that information to the Commission, then a number of consequences are then likely to follow. One is that if indeed the hopes of the Police are found to be true, then Mr 'X' and/or persons associated with Mr 'X' could want to seek retribution against me or my family or extended family for providing information to authorities which was given to me in confidence and in the circumstances outlined elsewhere in my evidence. And secondly, the motivation might not only be retribution but could also be to prevent any further disclosure which might be seen by Mr 'X' or persons associated with him or her, to be within my mind that I could provide. It also extends to, as my counsel has pointed out, to the fear arising from the comments made to me by the investigating officers, as set out in my affidavit, as to their investigations with respect to other police officers that those police officers are no doubt well-resourced to carry out retribution and/or other harm to me to prevent any further disclosure that might be available. Mr Bradley: But did you - I'll just stop you there for a moment.

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23 The Commissioner's decision with respect to the fear of reprisal ground was in the following terms (Transcript, page 29): "As I said earlier, there's no question about the reality of Z's subjective concerns, but it's not for him to make the determination as to whether that excuse is reasonable or not, whether or not he's been comforted or by what he's heard from the Commission or other officers. There's no evidence of substance to support the assertion that there is an actual threat, but there's a reasonable apprehension for the circumstances because of circumstances that you've outlined. I accept the interpretation of 18, put forward by Mr Singleton. I note also in that context the unambiguous terms of Section 18B(1). We're here involved in an investigation. Part of that investigation will be to determine the identity of the persons who shot M. That seems to be absolutely critical. There's evidence before the Commission, of which you're not aware, that makes the identity of 'X' even more critical to the advancement of the investigation. That in one sense doesn't influence the decision about whether or not there is a reasonable excuse before it, because of what I said about the interpretation of Section 18 and 18B. I don't think that there is a reasonable excuse made out here and therefore I would direct Z to answer the two questions that were put to him earlier. Now, in fact, I formally do that". 24 Following the Commissioner's formal requirement to answer the questions, Z continued to decline to do so upon the claimed grounds of "reasonable excuse". The private hearing was adjourned to allow Z an opportunity to seek a review of the Defendant's decisions under s.19(2) NSWCC Act. 25 On 9 February 2005, the Plaintiff filed a summons in the present proceedings seeking a review of the decision of the Commissioner requiring him to answer these questions. The hearing of that summons came before me as duty judge on 2 March 2005. Given the subject matter of the litigation, both parties sought that the hearing proceed in closed court and I acceded to that application. Mr A S Howen appeared for the Plaintiff and Mr I D Temby QC and Mr P F Singleton appeared for the Defendant. The only evidence placed before me was the affidavit sworn on 18 February 2005 by Shauna Lindsey McPherson, Senior Intelligence Analyst employed by the Commission and the documents exhibited to that affidavit. There was no additional evidence from the Plaintiff before me. Following the hearing, the parties provided additional written submissions on 7 and 8 March 2005.

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the Commission shall decide as soon as practicable whether in its opinion the claim is justified and notify the person of its decision. (2) If the person is dissatisfied with the decision, the person may apply to the Supreme Court for an order of review in respect of the decision. … (4) On an application for an order of review in respect of a decision of the Commission under subsection (1), the Supreme Court may, in its discretion, make an order: (a) affirming the decision, or (b) setting aside the decision. … (7) An order of the Supreme Court under subsection (4) is, subject to any appeal from that order, conclusive for the purposes of any other proceedings. … (13) An application by a person under subsection (2) must: (a) be made in such manner as is prescribed by rules of court, and (b) set out the grounds of the application, and (c) be lodged with the appropriate Registry of the Supreme Court within the period of 5 days (excluding days on which the Registry is closed) immediately after the date on which the Commission notified the person of the decision to which the application relates. (14) The Supreme Court has jurisdiction with respect to matters arising under this section. (15) In this section, unless the contrary intention appears: 'appropriate officer' means the officer of the Supreme Court prescribed by rules of court as the appropriate officer for the purposes of this section. 'appropriate Registry' means the Registry of the Supreme Court prescribed by rules of court as the appropriate Registry for the purposes of this section. 'document' includes any thing. (16) Where a decision of the Commission under subsection (1) relates to 2 or more questions, or to 2 or more documents, the decision shall, to the extent to which it relates to a particular question or document, be deemed, for the purposes of this Act, to constitute a separate decision relating to that question or document only. …". 27 Mr Howen, for the Plaintiff, submits that, in undertaking a s.19(2) review, the Court is conducting a de novo hearing upon the question of "reasonable excuse". Mr Temby QC, for the Defendant, submits that the role of the Court is to review the correctness of the decision-making and not the decision per se. He submits that the process is not a merits review, and that the Plaintiff must establish that the Commissioner's decision was infected by some error. 28 In Rohatgi v Medical Tribunal of New South Wales (Court of Appeal, 20 April 1994, unreported, BC9402485), Mahoney AP (Meagher and Powell JJA agreeing) said at page 24: "The word 'review' is a word, which, in my opinion, does not have an ordinary meaning which is fixed. The content of it, in the sense of what it requires to be done, will vary with the context in which the term is used. It may require only an examination of what has been done, to ascertain whether, on the face of it, the Tribunal concerned has done what it was required to do: compare generally Coalcliff Collieries Ltd v Campbell (1964) 38 ALJR 180. The term may, at the other extreme, involve a de novo examination of the material on which the original order was made, the testing of the process by which the decision was reached, and an assessment of the correctness of that decision: see, eg, Appliance Holdings Pty Ltd v Lawson (1983) 1 NSWLR 246 at 249. And it may, I think, involve an examination of what has taken place which is between these two extremes: see Smith v New South Wales Bar Association (1992) 176 CLR 256 at 264 and 265; Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580 at 586. It is necessary to examine the context of the present provisions in order to determine what in this case the duty to review the removal decision required." 29 In Rohatgi, above, Mahoney AP said at page 20: "In considering the meaning of 'review' it is of assistance to follow the procedure suggested by Lord Coke and now adapted as the purpose mode of construction: see Metal Manufacturers Pty Ltd v Lewis (1988) 13 NSWLR 315 at 325 and 326. This procedure involves: determining the problems which the statute sought to solve: identifying the remedy which it chose for solving them; and determining how the remedy was applied in the solution of them". 30 The Commission is an investigative, not a judicial, body: Mannah v State Drug Crime Commission (1988) 13 NSWLR 43 at 52; Ganin v New South Wales Crime Commission (1993) 32 NSWLR 423 at 431; cf Balog v Independent Commission Against Corruption (1990) 169 CLR 625 at 636. Where a claim is made by a person under s.19(1)(a) or (c), the Commission is required to decide whether, in its opinion, the claim is justified and notify the person accordingly. If the person is dissatisfied with the decision, s.19(2) provides a statutory avenue of review of the decision by the Supreme Court. On such an application for an order of review, the Supreme Court may, in its discretion, make an order affirming the decision or setting aside the decision: s.19(4). An order of the Supreme Court under s.19(4) is, subject to any appeal from that order, conclusive for the purposes of any other proceedings: s.19(7). 31 The nature of a "review" under s.19(2) NSWCC Act was touched upon in Ganin, above. Although other provisions of the NSWCC Act which were considered in Ganin were amended in 1996, s.19(2) and (4) have not been changed. Kirby P (Meagher JA and O'Keefe AJA agreeing) said at 439E: "For the Commission it was put that, if the Court came to this conclusion, it should not substitute its own opinion for that of the decision maker. The proceedings in the Court being by way of review, and not a merits appeal, the Court should identify the error and return the matter to the Commission for its decision. For a number of reasons, I think that is the correct course to take. It accords the proper relationship between the Commission and the Court". 32 Kirby P said at 437E: "For the Commission it was urged that the Court should not permit Mr Ganin to expand the assertions of his 'reasonable excuse' beyond those stated by him before the primary decision-maker, that is, Mr Briese. I do not agree. As stated, the issue is not whether the objecting witness expressed a reasonable excuse, but whether he or she had a reasonable excuse at the time of the refusal or failure to answer a question. In the nature of things, some witnesses will be without legal representation. They may not then be able to express, or even conceive, the lawful grounds upon which they have a 'reasonable excuse' to refuse or fail to answer a question. If Parliament had intended to confine them to the 'excuse' expressed at the time, it would have so provided. For the reasons already given, I would decline to adopt a narrow construction of the excuse provisions in section 18(1) and section 18(2). To do so would defy the plain words of the Act". 33 Kirby P observed at 439G: "As well, the Commission, as a body constituted to perform investigatory functions, is likely to have more knowledge of the reasonableness or otherwise of the appellants' now submitted excuses than this Court could muster from its own experience. Where parliament establishes a specialised body, such as the Commission, it is appropriate for this Court to accord great weight to the decision of the Commission, given the knowledge and experience available to it: R v Ludeke; Ex parte Queensland Electricity Commission (1985) 159 CLR 178 and 184. This is not to forfeit the Court's duty to perform the review contemplated by parliament in S.19(2) of the Act. The powers of the Commission are so drastic and exceptional that it is unsurprising that parliament should have provided for such review. But it is to insist that, at least in the first instance, this specialised body be afforded the opportunity of making the primary decisions." 34 Section 19(4) enables the Supreme Court "in its discretion", to make an order affirming or setting aside the decision of the Commission. The statutory reference to the Court exercising a discretion in this respect tends to support the view that the function being carried out by the Court is not a narrow one. Likewise, the observation of Kirby P in Ganin, above, that the Court may consider whether the person had a "reasonable excuse" at the time when the person appeared before the Commission, whether that head of "reasonable excuse" was advanced at that time or not. 35 In the event, I do not consider that it is necessary to explore this question further to determine the present application. The only evidence which is before me is the material which was before the Commission at the time when it made its decisions on 2 February 2005. There is no additional evidence from the Plaintiff. The arguments which have been advanced to this Court as to "reasonable excuse" involve the same heads of claim as those made before the Commission on 2 February 2005, although more elaborate legal argument has occurred both in writing and orally before me. 36 In the circumstances of this case, the function which I am undertaking under s.19(4) NSWCC Act will require a decision, on the material before me, as to whether the Plaintiff had a "reasonable excuse" for the purposes of the NSWCC Act, on the grounds advanced before me, which entitled him to refuse to answer the questions put to him on 2 February 2005.

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(5) The member presiding at the hearing may declare that all or any classes of answers given by a witness or that all or any classes of documents or other things produced by a witness will be regarded as having been given or produced on objection by the witness, and there is accordingly no need for the witness to make an objection in respect of each such answer, document or other thing". 39 I note that s.18 was amended, and s.18B was inserted, by the New South Wales Crime Commission Amendment Act 1996 No. 104. In certain respects, the present NSWCC Act differs from the Act considered in Ganin. In particular, s.18B(1) provides that a witness is not excused from answering any question on the ground that the answer "may incriminate or tend to incriminate the witness, or on any other ground of privilege, or on the ground of a duty of secrecy or other restriction on disclosure, or on any other ground". The Defendant did not contend before me that this provision operated to exclude the grounds asserted here from being a "reasonable excuse" for the purposes of s.18(2) of the Act. "Reasonable Excuse" in s.18 NSWCC Act 40 In Taikato v The Queen (1996) 186 CLR 454, Brennan CJ, Toohey, McHugh and Gummow JJ observed at 464 that what is a reasonable excuse depends not only on the circumstances of the individual case, but also on the purpose of the provision to which the offence of "reasonable excuse" is an exception. 41 There may be a reasonable excuse without a legal justification for the conduct in question: Poole v Wah Min Chan (1947) 75 CLR 218 at 232; Taikato, above, at 470, 491; Bank of Valletta plc v National Crime Authority (1999) 164 ALR 45 at 36 (Hely J.). In Ganin, above, Kirby P said at 436B: "There is no apparent reason to read down exemptions for 'reasonable excuse' in Section 18 (2) of the Act. On the contrary, there is every reason to give the words used their ordinary construction. They simply ask whether the refusal to answer the question was 'without reasonable excuse'. As Ireland J rightly pointed out, the question is not whether the excuse stated or subjectively conceived was reasonable. It is whether, at the relevant time of refusal to answer the question as required, there was, or was not, a reasonable excuse. In accordance with orthodox canons of construction these words would not be given a narrow meaning. They appear in a provision which imposes a criminal sanction for its breach." 42 Kirby P observed at 436D that the "reasonable excuse" must be "one relevant to the refusal or failure to answer a question". His Honour continued at 437C-D: "It is not even confined (as other like legislation is) to whether the witness has a 'lawful excuse'. The criterion is solely whether the refusal complained of occurred 'without reasonable excuse'. By those very wide words, attention is directed to a broader frame of reference." 43 Kirby P said at 439C-D: "All that is required, in the terms of S.18(2), is that the resisting witness should have a 'reasonable excuse'. It is undesirable that different "formulae" should be substituted for that which parliament has enacted. Nevertheless, in judging whether a 'reasonable excuse' exists, it was clearly appropriate for the decision-maker to put out of mind imaginary and insubstantial fears or those which, in the practical world, are so remote as to be safely ignored or over-ruled as unreasonable. In each case, a judgment must be made." 44 Section 18(2), as amended in 1996, now provides that a witness shall not refuse or fail to answer a question "without reasonable excuse or except as provided by section 18A or 18B". It is necessary to read the abovementioned passages from Ganin with these statutory changes in mind. The term "without reasonable excuse" is no longer the sole criterion used in s.18(2). It has not been argued before me that this amendment to s.18(2) has any impact upon the grounds of "reasonable excuse" which are said to exist in this case.

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(2) The secondary object of this Act is to reduce the incidence of organised and other crime". 46 The principle functions of the Management Committee include referral of matters relating to relevant criminal activities to the Commission for investigation: s.25(1)(a). The term "investigation" means an investigation by the Commission of a matter referred to it under s.25(1)(a) or (a1) by the Management Committee: s.3(1). 47 The terms "relevant criminal activity" and "relevant offence" are defined in s.3(1) of the Act. In the present case, it is noteworthy that the Management Committee has referred to the Commission for investigation the attempted murder of M on or about 28 November 2002, the Management Committee being satisfied, inter alia, that the investigation by the Commission of the offence is "in the public interest" (see clause (b)(i) of the definition of "relevant offence" in s.3(1) of the Act). 48 The principal functions of the Commission include the investigation of mattes relating to relevant criminal activity referred to the Commission by the Management Committee for investigation: s.6(1)(a). 49 For the purposes of an investigation, the Commission may hold hearings: s.13(1). A hearing before the Commission shall be held in private and the Commission may give directions as to the persons who may be present during the hearing or a part of the hearing: s.13(5). Section 13(9) of the Act provides as follows: "(9) The Commission may direct that: (a) any evidence given before it, (b) the contents of any document, or a description of any thing, produced to the Commission or seized pursuant to a search warrant issued under section 11, (c) any information that might enable a person who has given or may be about to give evidence before the Commission to be identified or located, or (d) the fact that any person has given or may be about to give evidence at a hearing, shall not be published, or shall not be published except in such manner, and to such persons, as the Commission specifies, and the Commission shall give such a direction if the failure to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been or may be charged with an offence". 50 Section 13(12) is in the following terms: "(12) A person who: (a) is present at a hearing in contravention of subsection (7), or (b) makes a publication in contravention of a direction given under subsection (9), is guilty of an offence punishable, upon conviction, by a fine not exceeding 100 penalty units or imprisonment for a period not exceeding 2 years, or both". 51 The evidence reveals that a direction under s.13(9) has been made with respect to the private hearings at which Z has been called to give evidence. I should proceed on the basis that such a direction will be made at any future private hearing at which Z is called to give evidence. 52 Section 16(1) enables persons to be summoned to appear before the Commission at a hearing to give evidence. Section 29, a statutory secrecy provision, is in the following terms: "29 Secrecy (1) This section applies to: (a) a member of the Commission, and (b) a member of the staff of the Commission, and (c) a member of a police task force assisting the Commission in accordance with an arrangement under section 27A, and (d) a person to whom information is given either by the Commission or by a person referred to in paragraph (a), (b) or (c) on the understanding that the information is confidential. (2) A person to whom this section applies who, either directly or indirectly, except for the purposes of this Act or otherwise in connection with the exercise of the person's functions under this Act, and either while the person is or after the person ceases to be a person to whom this section applies:

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Claim of "Reasonable Excuse" - The Public Interest Immunity Ground 56 The Plaintiff contended that public interest immunity was capable of constituting a "reasonable excuse" for the purposes of s.18(2) NSWCC Act. The Defendant accepted that, in an appropriate case, public interest immunity could be relied upon as a "reasonable excuse". However, the Defendant submitted that it could not be availed of in the circumstances of this case. 57 Relying upon the informer rule, Z argued that he should not be required to reveal the identity of X in circumstances where X provided Z with information and instructed him to pass it on to the police upon a condition that X's identity would not be revealed. Mr Howen argued that there was an agreement in 1998 between Z and the police that the identity of X would not be sought, and that it would constitute a form of breach of agreement or breach of trust for Z to be required now to reveal the identity of X. 58 In my view, this submission does not accurately reflect the evidence concerning the conversation between Z and the police in 1998. I have incorporated in this judgment Z's own version of this conversation (see paragraph 7 of this judgment). Z offered to provide the information to police without revealing his source. The police received the information from Z. There was no express or implied agreement between the police and Z that no further action would be taken by police, let alone a body such as the Commission, to ascertain the identity of X. In my opinion, the evidence concerning the disclosure of the information by Z to the police does not demonstrate any agreement which bears upon resolution of the present question. 59 What is left is the fact that Z, then a solicitor, passed on information to police upon the instructions of X, then a client of Z. In the exercise of its important public function of investigating crime, the Commission seeks from Z the identity of X. It does so in the context of a private hearing in aid of an investigation where statutory secrecy obligations arise with respect to any evidence which Z gives. 60 It has been said that public interest immunity is a doctrine that protects the public interest and, in particular, "requires a dimension that is governmental in character": R v Young (1999) 46 NSWLR 681 at 693, 721. It protects especially "the executive arm of government and of the public service": Young, above, at 694, citing Sankey v Whitlam (1978) 142 CLR 1 at 56 and Commonwealth of Australia v Northern Land Council (1993) 176 CLR 604 at 619. The notion of governmental function is very broad in nature: Mok v New South Wales Crime Commission [2002] NSWCA 53 at paragraph 19. In my view, the important public functions of the Commission, reflected in the statutory provisions referred to earlier in this judgment, attract these principles. There is a powerful public interest in the Commission receiving answers to the questions posed to Z to allow the Commission to further its statutory functions of investigating serious crime. 61 In Cain v Glass (No. 2) (1985) 3 NSWLR 230, McHugh JA said at 247C: "The justification for the exalted position of the informer rule in the spectrum of public interest immunity is that, unless the anonymity of informers is protected 'the flow of intelligence about planned crime or its perpetrators' will stop: D v National Society for the Prevention of Cruelty to Children (1978) AC 171 (at 232) per Lord Simon of Glaisdale. Although the need to protect the safety of informers may have played a part in creating the principle, the existence of a threat to the informer is not a condition precedent to its operation". 62 In R v Smith (1996) 86 A Crim R 308 at 311, the Court of Criminal Appeal (Gleeson CJ, Clarke and Sheller JJA) observed with respect to the informer rule: "The fact that one person provides information to another in confidence does not of itself mean that disclosure of such information may not be compelled in legal proceedings. The private interest in confidentiality yields to the public interest in the due administration of justice. However, in certain circumstances the law recognises that a more important public interest is served by protecting information, or the identity of an informant, from disclosure in court. One such circumstance is involved in the practice, which has long since hardened into a rule of law, that the identity of police informers will be protected from disclosure: see D v National Society for the Prevention of Cruelty to Children [1978] AC 171 at 218. The rationale of this form of public interest immunity is that, if it were not extended, sources of information would dry up and the prevention and detection of crime would be hindered". 63 The Plaintiff relies upon the judgment of the South Australian Court of Criminal Appeal in R v Mason (2000) 74 SASR 105 where the informer rule was considered and applied. The statements of principle in Mason do not appear to be controversial. Rather, the question is what those statements have to do with the circumstances of the present case. 64 The Plaintiff contends that he ought to be allowed to withhold the identity of X because X provided him with information to be passed on to the police, upon the basis that X's identity not be revealed. It seems to me that cases such as Cain v Glass (No. 2), Smith and Mason may provide support for a refusal to name X publicly in an open court. "Disclosure in a court of law" is the usual context in which the informer rule applies: D v National Society for the Prevention of Cruelty to Children [1978] AC 171 at 218; Attorney-General for NSW v Stuart (1994) 34 NSWLR 667 at 674-5; R v Abdullah (1999) NSWCCA 188 at paragraph 21. It is the "public disclosure by police of their sources of information" which is guarded against by the informer rule: Cain v Glass (No.2) above, at 242G per Priestley JA. It is true that public interest immunity is not confined to judicial and quasi-judicial proceedings: Jacobsen v Rogers (1994-1995) 182 CLR 572 at 589. However, the questions which are posed to Z in this case arise in the context of a private hearing of an investigatory body with statutory secrecy provisions supported by criminal sanctions. In my view, it would require a most exceptional case before the informer rule could constitute a "reasonable excuse" for refusing to answer a question at a private hearing of the Commission. 65 The Plaintiff contends that it may constitute an abuse of process for authorities to require a person to answer a question contrary to an express undertaking. In this respect, he refers to Registrar, Court of Appeal v Craven (No. 1) (1994) 126 ALR 668. The Plaintiff submits that, in asking the subject questions, the Commission has required answers to questions contrary to an express undertaking, the undertaking said to have been given by police in 1998. 66 For reasons already expressed (in paragraph 58 of this judgment), I do not consider that this is an accurate portrayal of the circumstances in which Z gave information to police in 1998. Properly understood, these circumstances rose no higher than a willingness on the part of the police to receive information from the Plaintiff without him revealing his source. That is a far cry from a form of undertaking or agreement that no steps would be taken to identify X. The police received the information that was passed on by the Plaintiff. On the Plaintiff's own account (see paragraph 7 of this judgment), the police did not give an assurance that they would refrain from taking steps to identify the source of the information. Indeed, according to Z, the police asked him questions with the apparent intention of identifying the source of the information. 67 In my opinion, the principles of public interest immunity as reflected in the informer rule do not constitute, in the circumstances of this case, a "reasonable excuse" for Z refusing to answer the questions posed by the Commission.

[59]

71 It is noteworthy that, when informed by police in March 2003 of the attack upon M, Z said "I would be surprised if the person that provided me with that information is involved but I guess you have to follow everything up" (see paragraph 15 of this judgment). 72 The Defendant submits, correctly in my view, that fear of reprisal cannot be a "reasonable excuse" for refusing to answer a question in a private hearing protected by statutory secrecy provisions unless, at the very least, the fear could ground a refusal to answer a question in public proceedings. The protections surrounding a Commission hearing may be seen in ss.13(5), (9) and (12) and 29 NSWCC Act, to which reference has already been made. 73 It is useful to refer to the principles applicable where a person is charged with contempt of court by reason of refusal to be sworn or to answer questions at a trial. In Registrar of the Court of Appeal v Gilby (Court of Appeal, 20 August 1991, unreported, BC9101644), the Court of Appeal (Mahoney, Priestley and Clarke JJA) said at pages 22-23: "Many persons who give evidence in criminal proceedings would prefer not to do so. It is not uncommon for witnesses to have a general apprehension that those on trial might in some way cause harm to them. In some cases, the reason for apprehension of this kind goes further. Threats may be made, general or specific, that harm will be done to a person if he gives evidence. In some cases, threats may be made to other persons and that fact may provide a basis for apprehension by the particular witness. But such circumstances do not, in general, constitute duress in the sense of relieving the witness of the obligation to give evidence when properly called upon so to do. In order to constitute duress in the sense relevant to an offence of the present kind, it is necessary that there be, in the sense to which we shall refer, elements of immediacy, directness and fear in respect of what has been done. It is not necessary for present purposes to attempt to detail exhaustively the elements of duress for this purpose, or to discuss such elements in abstract terms. It is the nature of what Mr Gilby felt in this case which is at the heart of the matter. It is sufficient to conclude that, these elements being absent, we are not satisfied that Mr Gilby did what he did because of duress". 74 The Court observed in Gilby, above, at pages 24-25 that a mere subjective fear is not of itself sufficient to constitute duress. The Defendant submits, correctly, that Gilby establishes that a mere fear of adverse consequences provides no justification for a witness refusing to answer questions at a trial, and that such a fear would not constitute a defence to a charge of contempt of court if questions were not answered upon that basis. 75 The present question is whether the asserted fear constitutes a "reasonable excuse" for the purposes of s.18(2) of NSWCC Act. It seems clear that it could not give rise to a defence of duress if a charge of contempt of court was brought against the Plaintiff for refusing to answer questions in an ordinary court. The concept of "reasonable excuse" requires a clear objective component. This objective element has been emphasised in cases where the meaning of "reasonable excuse", in various statutory contexts, has been considered: Taikato, above, at 466-467; Mark v Henshaw (1998) 85 FCR 555 at 559-562. 76 In Ganin, above, Kirby P said at 439 C-D: "Nevertheless, in judging whether a 'reasonable excuse' exists, it was clearly appropriate for the decision-maker to put out of mind imaginary and insubstantial fears or those which, in the practical world, are so remote as to be safely ignored or over-ruled as unreasonable. In each case, a judgment must be made." 77 In approaching this ground, once again it is necessary to keep in mind the nature of the Commission hearing. It is a private hearing of an investigatory body exercising statutory powers concerning the detection of serious crime. Statutory secrecy provisions surround the hearing in which the questions are asked. In my view it would be a rare case where fear of reprisal could constitute a "reasonable excuse" for refusing to answer a question in such a protected forum. 78 The Defendant submits that this head of "reasonable excuse" has not factually been made out as being reasonable in the circumstances of this case. I agree with this submission. The degree of risk of harmful consequences is entirely incapable of measurement in the circumstances of this case. In his decision on 2 February 2005 rejecting this part of Z's claim, the Commissioner acknowledged the nature of Z's "subjective concerns" but pointed to an absence of "evidence of substance to support the assertion" (see paragraph 23 of this judgment). I do not consider that the evidence before me lifts the Plaintiff's fears above the level of subjective concern only. I do not consider that the evidence of his fears constitutes a "reasonable excuse" for him refusing to answer. The fact that the questions are posed to the Plaintiff at a private hearing of the Commission, with the statutory protections already adverted to, fortifies the conclusion that the circumstances do not give rise to a "reasonable excuse" within the meaning of s 18(2) NSWCC Act .

Z v New South Wales Crime Commission

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Judgment (61 paragraphs)

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Cases Cited (24)