JUDICIAL REVIEW – Public interest immunity – Whether proposed disclosures by Director of Public Prosecutions subject to public interest immunity – Disclosure of identity of police informant to convicted persons – Risk of substantial miscarriage of justice – Whether disclosures capable of providing substantial assistance in challenging convictions – Risk to informant safety – Assurances of confidentiality by police – Whether distinct public interest in duty of care arising from assurances – Assurances inform public interest in protecting informant safety – Whether error balancing public interests – No error – Jarvie v Magistrates Court of Victoria at Brunswick [1995] 1 VR 84, Sankey v Whitlam (1978) CLR 1, Baini v The Queen (2012) CLR 469 considered.
COURTS AND JUDGES – Reasons – Whether factual findings open on the evidence – Whether error in finding as to level of risk to informant – Whether error in finding police could take steps to protect informant – No error.
EQUITY – Confidence – Disclosure of identity of police informant – Whether obligation of confidence where disclosure might provide assistance to convicted person in challenging convictions – Iniquity defence – Whether information reveals likelihood of serious misdeed of public importance – Appeal dismissed.
HUMAN RIGHTS – Right to fair hearing – Whether Court required to ensure fair hearing where no notice to affected persons – Whether any limitation of Charter rights demonstrably justified – No failure to comply with fair hearing right – Charter of Human Rights and Responsibilities Act 2006 ss 6(2)(b), 7(2), 24(1) and 25(2)(b).
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APPEARANCES:
Counsel
Solicitors
For AB
Mr P J Hanks QC with Mr E M Nekvapil and Ms F L Batten
Victorian Government Solicitors Office
For EF
Mr P W Collinson QC with Ms C M Harris
Minter Ellison
For CD
Dr S B McNicol QC with Mr C T Carr and Mr M Hosking
Office of Public Prosecutions
Counsel acting as Amicus Curiae
Mr W B Zichy-Woinarski QC with Ms J Davidson
Russell Kennedy
Counsel intervening on behalf of Commissioner
Ms K M Evans
Victorian Equal Opportunity and Human Rights Commissioner
Counsel intervening on behalf of the Commonwealth Director
Ms R Orr QC with Mr M Wilson
Ms A Pavleka, Commonwealth Solicitor for Public Prosecutions
Introduction
EF[1] became a police informer in 2005 and remained an informer until about January 2009. At the time that she was recruited as a police…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
AB v CD & EF [2017] VSCA 338
Case
[2017] VSCA 338
Decision Date
CaseChat Overview and Summary
AB, a convicted person, brought an application for judicial review in the Supreme Court of Victoria against CD, the Director of Public Prosecutions, challenging the decision to apply for a public interest immunity certificate to prevent the disclosure of the identity of a police informant. AB argued that the disclosure was necessary to challenge his convictions and that the risk to the informant's safety was minimal. CD maintained that the risk to the informant's safety outweighed any benefit to AB in disclosing the identity of the informant. The court was required to decide whether the proposed disclosures were subject to public interest immunity, whether the risk of substantial miscarriage of justice outweighed the risk to the informant's safety, and whether the police could take steps to protect the informant.
The court found no error in CD's decision, holding that the balancing of public interests was properly conducted. The court found that the risk to the informant's safety was significant and that the police had taken appropriate steps to protect the informant's identity. The court found that the assurances of confidentiality by the police informed the public interest in protecting the informant's safety. The court found no error in the factual findings made by CD and that the balancing of public interests was properly conducted. The court found that the disclosure of the informant's identity would not provide substantial assistance in challenging AB's convictions and that the risk of a substantial miscarriage of justice was outweighed by the risk to the informant's safety.
The court dismissed AB's application for judicial review and found no failure to comply with AB's right to a fair hearing. The court held that the public interest in protecting the informant's safety outweighed any benefit to AB in disclosing the identity of the informant. The court held that the police had taken appropriate steps to protect the informant's identity and that the assurances of confidentiality by the police informed the public interest in protecting the informant's safety. The court found no error in CD's decision and dismissed AB's application for judicial review.
Orders
Orders of the court
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Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
In cases to which it applies however, ss 130(1) and (5) resolve the question whether an overall balancing test should be applied to police informers.[90][90]Section 130 of the Evidence Act 2008 relevantly states:130Exclusion of evidence of matters of state(1)If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence.…(5)Without limiting the matters that the court may take into account for the purposes of subsection (1), it is to take into account the following matters—(a)the importance of the information or the document in the proceeding;(b)if the proceeding is a criminal proceeding—whether the party seeking to adduce evidence of the information or document is an accused or the prosecutor;(c)the nature of the offence, cause of action or defence to which the information or document relates, and the nature of the subject matter of the proceeding;(d)the likely effect of adducing evidence of the information or document, and the means available to limit its publication;(e)whether the substance of the information or document has already been published;(f)if the proceeding is a criminal proceeding and the party seeking to adduce evidence of the information or document is an accused—whether the direction is to be made subject to the condition that the prosecution be stayed.… Fourthly, we note that the cases make clear that the question of the public interest once raised is for the court to determine. It is not strictly a question inter partes. It follows that whilst, as the amici curiae submit, it is generally true that the onus of establishing that relief should be granted falls upon the party or parties seeking declarations from a court, we would accept the Chief Commissioner’s submission that the issue in the present case is not one on which the Chief Commissioner or EF strictly speaking bear a legal onus of proof. We have already noted the statement of Gibbs ACJ in Sankey v Whitlam[91] that it is in all cases the duty of the court to decide whether information will be produced or may be withheld in the public interest. In Sankey v Whitlam, Stephen J stated the underlying principle as follows: In R v Ward,[93] the Court of Appeal observed that if, in a wholly exceptional case, the prosecution is not prepared to have the issue of public interest immunity determined by a court, the result must inevitably be that the prosecution will have to be abandoned. [93][1993] 1 WLR 619, 681. Fifthly, although the judgment as to the balance of the public interest involves a value judgment based on assessments of fact and degree, it is not a discretionary judgment. Moreover, the members of the appellate court when conducting an appeal by way of rehearing are able to carry out the balancing exercise for themselves.[94] [94]State of Victoria v Brazel (2008) 19 VR 553, 565–7 [36]–[43].