Attorney-General (NSW) v Nationwide News Pty Ltd
[2007] NSWCCA 307
•5 November 2007
Reported Decision: 178 A Crim R 301
New South Wales
Court of Criminal Appeal
CITATION: Attorney-General for NSW v. Nationwide News Pty. Limited & Anor. [2007] NSWCCA 307
This decision has been amended. Please see the end of the judgment for a list of the amendments.HEARING DATE(S): 4 October 2007
JUDGMENT DATE:
5 November 2007JUDGMENT OF: Hodgson JA at 1; Hislop J at 46; Latham J at 47 DECISION: 1. Appeal dismissed. 2. Confidential affidavits read below to be placed in a sealed envelope and not to be accessed without the order of a Supreme Court judge. 3. Order that the judgment of Fullerton J and this judgment not be published for a period of six months from today. 4. Leave to the parties to make submissions concerning orders 2 and 3 and concerning costs, such submissions to be made within 28 days. CATCHWORDS: PRACTICE - CRIMINAL LAW - Public interest immunity - Whether public interest immunity can apply to evidence given in court - Open justice principle - Exceptions to open justice principle - Whether preservation of confidentiality of police methods can be such an exception - Whether necessary for the administrtion of justice. CASES CITED: Attorney-General for New South Wales v. Smith (1996) 86 A Crim R 308
Jacobsen v. Rogers (1995) 182 CLR 572
John Fairfax Publications Pty. Limited v. District Court of New South Wales [2004] NSWCA 324, 61 NSWLR 344
R v. Fandakis [2002] NSWCCA 5
R v. Kwok [2005] NSWCCA 245, 64 NSWLR 335
Re Application by Chief Commissioner of Police (Vic) for Leave to Appeal [2004] VSCA 3
Scott v. Scott [1913] AC 417
Tofilau v. The Queen [2007] HCA 39
Witness v. Marsden [2000] NSWCA 52, 49 NSWLR 429PARTIES: Attorney-General for NSW - appellant
Nationwide News Pty. Limited - 1st respondent
John Fairfax Pty. Limited - 2nd respondentFILE NUMBER(S): CCA 2007/1450-003 COUNSEL: Mr. P. Singleton for appellant
Mr. T. Maltz for respondentsSOLICITORS: I.V. Knight, Crown Solictor for appellant
Blake Dawson Waldron, Sydney, for respondentsLOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S): CCAP 2007/1450 LOWER COURT JUDICIAL OFFICER: Fullerton J LOWER COURT DATE OF DECISION: 2 October 2007
This is a redacted form of the judgment delivered on 5 November 2007. The court has ordered that until 31 October 2010 (or until further order) the unredacted version of the judgment be restricted to the parties and their external legal advisers and counsel.
CCAP 2007/1450-003
Monday 5 November 2007HODGSON JA
HISLOP J
LATHAM J
1 HODGSON JA: On 2 October 2007, Fullerton J, in the course of hearing the trial of Terry Donai on a charge of murder, made orders dealing with an application by the New South Wales Commissioner of Police for orders restricting the publication of certain evidence given and other statements made during the trial. Apart from ordering the editing of certain exhibits so as to exclude reference to undercover operatives by name or pseudonym, the primary judge refused this application.
2 The Attorney-General for New South Wales has appealed against this decision of the primary judge.
CIRCUMSTANCES
3 The charges against Mr. Donai were brought after the prosecution obtained what it alleged were taped confessions to disposing of the bodies of the victims of the murder with which he was charged. Those taped confessions were obtained as a result of an undercover operation of the type considered in Tofilau v. The Queen [2007] HCA 39. This type of operation was referred to by the primary judge as “the technique”.
4 On the first day of the trial, the Commissioner of Police sought orders suppressing the assumed name of the undercover operatives and any other means by which they might be identified. These orders were made without objection.
5 When the Crown Prosecutor opened the case to the jury on 17 September 2007, she referred to features of the technique. This reference was briefly reported in two newspapers on the following day.
6 On 25 September 2007, the primary judge ordered that the Court be closed during the giving of evidence by three undercover police officers, in order to protect their identities from disclosure. In doing so, the primary judge conveyed that the Commissioner of Police should not assume there would be automatic prohibition on access to that evidence.
7 At the conclusion of the evidence of the first of those witnesses on 25 September 2007, the primary judge made orders having the effect of permitting the Commissioner of Police to apply for orders preventing disclosure of any part of the transcript of this evidence. Similar orders were made in relation to the evidence of the other two witnesses.
8 On 26 September 2007, in closed court, the primary judge made a brief reference to features of the technique.
9 On 27 September 2007, the Commissioner of Police made an application for orders that there be no publication of designated parts of the evidence tendered on 26 September 2007, being a recorded conversation between the accused and an undercover police officer, and also that the references to features of the technique by the Crown Prosecutor in opening and by the primary judge on 26 September 2007 be suppressed or expunged from the public record of the proceedings.
10 The application was opposed by Nationwide News Pty. Limited and John Fairfax Pty. Limited and was heard over two days, in the absence of the jury.
DECISION OF PRIMARY JUDGE
11 The primary judge referred to confidential affidavits provided by the Commissioner of Police concerning the technique, which satisfied her that xxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxx xxxx xx xxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxx xx xxxxxxxx xxxxxxxxx xxxxxxxxxxxxx xxxxxxx xxxx xxxxxxxx xxxx xxx xxx x xxxxxxxxxxxxxxxxxxxx xxxxxxxx xxxxxxxx xxxxxxx xxxxx xxxxxxx xxxxxx xxxxxxxx xxxxxxxxxxxxx xxxxxxxxxx xxxxxxxxxxx xxxx xxxxx xxxxx xxxx xxxxxxxxxx xxxxxxxxxxxxxxxxxx xxxxxxxxx xxxxxxxxxxxxxxx xxxxxxx xxxxx xxxxxx.
12 However, the primary judge said there was no evidence before her and no argument that xxxxxxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxx xxxxx xxx xxxxxxxxxx xxxxxxxxxxxx xxxxxxxxxxx xxxxxxxxxxxxxxxx xxxxxx xxxx xxxxxxxxxx. This does not seem to be strictly correct, as in at least one of the confidential affidavits there is an assertion to the effect that, xxxxxxxxxx xxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxx xxxxxxxxxxxxxxx xxxxxxxx xxxxxxxxxxxx xxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxx xxxxxxxxxxx.
13 The primary judge accepted that deployment of undercover operatives was an important aspect of police investigations, that use of the technique has had success, and that xxxxxxxxx xxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxx.
14 The primary judge also referred to extensive judicial commentary on the use of the technique in Canada and Victoria, and by the High Court of Australia; and referred to press reports of Victorian and High Court decisions. In the case of a Victorian decision, the primary judge referred to a report in The Age of 8 September 2004 and in regional newspapers in Australia such as a report in The Newcastle Herald on 21 September 2004; and in the case of the High Court decision, a report in The Australian on 31 August 2007.
15 The primary judge referred to a contention by the Commissioner of Police that the correct approach was to balance the public interest in preserving the secrecy or sensitivity of the material on the one hand, and the public interest in open justice on the other hand; and the primary judge rejected this contention, holding that the question was whether a particular case fell within an established exception to the open justice principle. The primary judge was not satisfied that the inherent power of the Court extended to a power to protect against risk to undercover police investigations in other cases.
16 The primary judge referred to John Fairfax Publications Pty. Limited v. District Court of New South Wales [2004] NSWCA 324, 61 NSWLR 344, for the proposition that exceptions to the open justice principle are few and strictly defined; and she held that this case did not fall within any of these exceptions.
17 In case she was wrong on this, the primary judge went on to consider whether suppression of the relevant material from publication was necessary for the administration of justice. The primary judge found that “the design, implementation of and successful utilisation of the technique” is in the public domain”. She was however persuaded that publication will extend the currency of information about the technique in a material way, and that xxxx xxxxx xxxxx xxxxxxx xxxx xx xxx xxxx xxx ; but, she was not satisfied that this meant that suppression was necessary for the administration of justice.
SUBMISSIONS
18 The Court has been provided with extensive written and oral submissions. I will summarise the main lines of argument.
19 Mr. Singleton for the Attorney-General submitted that public interest immunity was a ground on which a court can order non-disclosure of information if the balance of competing interests requires this; that it is a basic common law doctrine not confined to disclosure within judicial and quasi-judicial proceedings, but extends to disclosure in other ways (relying on Jacobsen v. Rogers (1995) 182 CLR 572); and that the open justice principle does not exclude it or limit it to operating within a limited number of recognised exceptions to that principle.
20 Mr. Singleton submitted that public interest immunity applies to justify orders for non-disclosure of evidence that has been given in court: Attorney-General for New South Wales v. Smith (1996) 86 A Crim R 308; R v. Fandakis [2002] NSWCCA 5. Further, he submitted, the principle that justice must be administered in public yields to a paramount principle that the chief object of courts is “to secure that justice is done”: Scott v. Scott [1913] AC 417 at 437. The view that exceptions to the open justice principle are few and strictly defined, expressed in John Fairfax Publications Pty. Limited v. District Court of New South Wales [2004] NSWCA 324, 61 NSWLR 344 at [19], should not be read as denying this, or excluding the application of public interest immunity in such cases. At the very least, that case should not be read as excluding the making of a non-publication order where this was necessary to the administration of justice, albeit not within one of the particular established exceptions.
21 Mr. Singleton submitted that the primary judge erred in holding that it was necessary to bring the case within one of the few and strictly defined exceptions to the open justice principle, rather than weighing various aspects of the public interest as required by the public interest immunity principle; in holding that the power to prohibit disclosure was not exercisable on the basis of police investigations in other cases; and in the way she applied the test of necessity to determine whether the open justice principle was displaced. He submitted that the primary judge should rather have weighed the two aspects of public interest under consideration, and determined which prevailed.
22 Mr. Maltz for the media interests submitted that public interest immunity did not apply to the question whether an order should be made prohibiting the disclosure of evidence given in Court, except to the extent that considerations said to support public interest immunity could be brought within the limited and well-established exceptions to the open justice principle. He submitted that the cases of Smith and Fandakis were within those exceptions.
23 Mr. Maltz submitted that, even if a non-publication order could be made if the Court found it necessary to the administration of justice, albeit not within one of the established exceptions to the open justice principle, the primary judge had addressed that question and found it was not necessary in this case. No error was shown in the way she did this.
DECISION
24 I will address four questions:
- 1. Does public interest immunity apply in cases where suppression of evidence is sought, in such a way that the Court simply balances two aspects of the public interest?
2. If not, are exceptions to the open justice principle limited to well-established categories, or is there a general exception where non-disclosure is necessary for the administration of justice?
3. Does this case fall within or is it closely analogous to one of the well-established categories of exceptions to the open justice principle?
4. Is this a case where suppression of the evidence is necessary for the administration of justice?
25 In relation to the first question, I accept that public interest immunity is a common law doctrine not confined to disclosure within judicial and quasi-judicial proceedings (Jacobsen), and that its rationale is to protect the public interest by confining availability of confidential information; so that its applicability is not ipso facto defeated once the information is known to some outsiders, or even once the information has been used as evidence in judicial proceedings. However, in my opinion the cases on the open justice principle establish clearly that, once material is given in evidence or otherwise made available in judicial proceedings, an order prohibiting its publication will not be made unless it is found necessary for the administration of justice: see John Fairfax v. District Court, R v. Kwok [2005] NSWCCA 245, 64 NSWLR 335, and cases there cited.
26 The two cases I have referred to related to the power of a statutory court, the District Court of New South Wales, to make such orders; but the principles discussed and the cases cited make clear that there is a similar limitation on what may properly be done by a superior court of unlimited jurisdiction: see John Fairfax v. District Court at [38]. There may be the difference that a superior court can take a wider view about the administration of justice than can a statutory court: that is, whereas the statutory court may be limited to considering what is necessary for its own administration of justice, the superior court can consider what is necessary for the administration of justice generally. But whether or not this is so, and whether or not it makes any practical difference, need not be considered here.
27 In my opinion, the view I have stated is consistent with Smith and Fandakis. Both those cases fell within one of the clearly established exceptions to the open justice principle, and the reference in those cases to public interest immunity did not suggest that that kind of immunity could justify a wider departure from the open justice principle.
28 Turning to the second question, whether there is a general exception to the open justice principle where it is necessary for the administration of justice, I adhere to what I said in the following paragraphs in Kwok:
- 12 I accept that the only power in the District Court to make an order directed to non-publication of a witness’s name is such power as may be implied as being necessary for the administration of justice: John Fairfax v. District Court .
13 However, the requirement of necessity is not to be given an unduly narrow construction. I respectfully adopt what was said by Mahoney JA in John Fairfax Group v. Local Court at 161:
- This leads to the consideration of what is meant by "necessary to secure the proper administration of justice" in this context. The phrase does not mean that if the relevant order is not made, the proceedings will not be able to continue. Plainly they can. If the name of an informer is not hidden under a pseudonym, the proceeding will go on: at least, the instant proceeding will. And if the name of a security officer is revealed, the administration of justice or of the country will not collapse. The basis of the implication is that if the kind of order proposed is not made, the result will be - or at least will be assumed to be - that particular consequences will flow, that those consequences are unacceptable, and that therefore the power to make orders which will prevent them is to be implied as necessary to the proper function of the court. The kinds of consequences that, in this sense, will be seen as unacceptable may be gauged by those involved in the cases in which statutory courts have been accepted as having restrictive powers. Thus, there will be hardship on the informer or the security officer or the blackmail victim; the future supply of information from such persons will end or will be impeded; and it will be more difficult to obtain from such persons the evidence necessary to bring offenders before the courts and deal with them. It is not necessary to attempt to state exhaustively the considerations relevant in this regard: it is to considerations of this kind or of an analogous kind on which the principle stated by McHugh JA is based.
15 Mr. Ierace relied on the statement made by Spigelman CJ, concurred in by Handley JA and M.W. Campbell AJA, in John Fairfax v. District Court at [19], that it was well-established that the exceptions to the principle of open justice are few and strictly defined, and that the Court will not add to the list of exceptions. Mr. Ierace also referred to Spigelman CJ’s reference at [48] and [49] to the limited categories of cases in which non-publication orders can be made, and submitted that this case was not in any of those categories. He conceded in that case Spigelman CJ then undertook the task of looking independently of whether the orders made in that case were justified by necessity; but submitted that the matter relied on in this case fell far short of what could justify the orders on that basis.
16 I accept that the Court will not freely invent new categories of cases, but in my opinion the Court may identify categories that, while not coinciding exactly with the existing categories, are very closely analogous to them and have the same rationale for the making of non-publication orders.
29 In saying that the Court would not freely invent new categories, I did not intend to exclude the possibility that a case of necessity might be made out, even though the case does not fall within one of the established categories or a closely analogous category. Accordingly, even though I accept that exceptions to the open justice principle are few and strictly defined, in my opinion a case of true necessity may be considered to be one of those exceptions, even if not within one of the particular categories. In any event, I think it is appropriate to consider a case of necessity sought to be made out, either against the possibility that it may be found appropriate to extend existing categories by analogy, or to find necessity made out even though it is not within such a category. I note that that course was in fact taken in John Fairfax v. District Court.
30 As to the third question, whether or not this case fell within or was closely analogous to well-established exceptions to the open justice principle, it was submitted by the Attorney-General that the rationale of the exception in the case of informers was to protect the flow of intelligence about planned crime and/or its perpetrators; and there was a similar rationale for a rule permitting restriction on disclosure of confidential police methods.
31 I note that in Smith, the view was expressed that, when a claim for immunity is made in respect of the identity of a police informer, the Court before whom the claim is made does not undertake for itself, afresh, a balancing exercise: the balance has been struck in favour of non-disclosure except where disclosure could help to show that the accused was not guilty. There are at least two reasons why such an approach could not be appropriate in respect of the disclosure of evidence about confidential police methods. First, there would be great uncertainty as to what would qualify as confidential police methods, as to when there was sufficient public knowledge of them to remove confidentiality, and as to the nature and extent of the public interest in maintaining their confidentiality; and second, such a restriction would be a gross inroad into the principle of open justice, not the very limited inroad involved in keeping the identity of an informer confidential: cf. Witness v. Marsden [2000] NSWCA 52, 49 NSWLR 429 at [14]-[17]. In cases such as the present, the whole basis on which a confession has been obtained could be expected to be the subject of controversy and challenge at a trial and on appeal; and in those circumstances, to restrict publication of that basis would grossly conflict with the principle that the substance of what courts do should be subject to public scrutiny.
32 In my opinion, the analogy between the case of informers and the case of police methods said to be confidential is not a strong one; and the two considerations I have mentioned are sufficient reason for concluding that the protection of confidential police methods should not, by analogy with informers, be included as an exception to the public justice principle.
33 Accordingly, if publication is to be restricted in this case, it would have to be justified not on the basis that the material falls within one of the particular categories of exception to the open justice principle, but by directly showing that restriction on publication is necessary for the administration of justice.
34 This question was considered by the primary judge. I agree with what she said at par.[57] of her judgment, that it is not sufficient that suppression of the information would be “convenient, reasonable or sensible, or that it serves the public interest, or even on balance serves the public interest”. I note also that a conclusion similar to that of the primary judge was reached by the Victorian Court of Appeal in Re Application by Chief Commissioner of Police (Vic) for Leave to Appeal [2004] VSCA 3.
35 One possible error by the primary judge has been suggested: see par.[12] above. There was in fact some evidence of risk to undercover operatives, but no submission based on this was made either below or on appeal. Where the primary judge says there was no risk of revealing the identities of undercover operatives, I understand her to mean revealing their true identities, so as to put them and/or their families at risk otherwise than in the course of the operations, rather than mere realisation that the undercover operative was a police officer. So understood, this statement also discloses no error. Accordingly, there was no error material to the decision in the assertions in question,
36 In my opinion, no error is shown in the primary judge’s reasoning. I would add that I would reach the same conclusion myself.
37 I note first, although this is not directly relevant to the test of necessity, that the restriction on disclosure of this material would be a gross inroad into the open justice principle, as set forth above.
38 I am prepared to hold that the “administration of justice” can extend to the investigation and detection of crime, and the obtaining of evidence against suspects, and also that the protection of this aspect of the administration of justice is one main reason for the protection of the identity of informers.
39 In my opinion, the test of necessity requires at least that there be identified some substantial detriment or risk of detriment to the administration of justice that would, in a significant way, be alleviated by suppression of the information. In this case, the detriment is said to be disclosure of confidential police methods and the consequent loss of their effectiveness in current and future investigations. However, in my opinion there is a real question whether this could possibly be a sufficient detriment or risk of detriment, when evidence of those particular methods would have to be given in all cases where they are successfully applied, so that the methods would necessarily become known to the accused in those cases and through them to others. Further, in circumstances where the methods have already received substantial publicity, it is not shown that suppression of information in this case will in a significant way alleviate the detriment or risk of detriment.
40 In other words, the result that might be achieved cannot be a maintenance of secrecy of the methods: that would be impossible, and in any event, secrecy has already been lost. At best, suppression of the information could make some difference xxxxxxxxxxxxxxxx xxxxxxxxx xxxxxx xx about them and some consequent difference to their effectiveness. The primary judge did find that publication of the material would xxxxxxxx xxxxxxxxx xxxxxxxxxx about the methods in a material way, but she did not find how significant this was, but merely found this xxxx xxxxxx xxxx x. There is an ongoing possibility of substantial publicity of the technique, based on what is already in the public domain. In all the circumstances, I am not able to find that disclosure would make such a difference xxxxxxx xxxxxxx xxxxx xx xx xxxxx about the technique or xxxxx xxxxx xxxxx xxxx xxx that non-disclosure was “necessary” for the administration of justice, even in the broad sense given by Mahoney JA in John Fairfax Group v. Local Court at 161B.
41 Accordingly, I would dismiss the appeal.
CONFIDENTIALITY OF AFFIDAVITS AND JUDGMENTS
42 Submissions have not been directed to what should be done about confidential affidavits submitted in these proceedings, or the judgments of the primary judge and this judgment.
43 The confidential affidavits were not of course read in the trial, but were only read in a voir dire application by the Commissioner. They contain many details that do not in the event affect the basis of this decision, and disclosure of which would not be in the public interest. In my opinion, it is necessary for the administration of justice that applications of this kind can be made with full disclosure of details relevant to the public interest sought to be invoked. That is only possible if affidavits can be kept confidential. I propose to order that the confidential affidavits in this case be placed in a sealed envelope and not accessed without the order of a Supreme Court judge. However, I will reserve leave for the media interests to make submissions to the contrary, within 28 days.
44 The judgments of the primary judge and of this Court in one respect contain information that goes beyond the material at the trial, disclosure of which will now be permitted: that is, the information that xxxxxxx xxxxxxx xxxxxxxxx xx xxxxxxxxxx xxxxxxxx xxxxxxxxxxxxxx xxxxxxxx xxxxxxx. That additional information, which has not been the subject of any application or submissions by either side, may xxxxxxx xxxxxxx xxxxx xxxxxxxx xxxxxxx xx. In my opinion, that consideration would justify delaying publication of the primary judge’s judgment and of this judgment for a period of six months, and I propose to so order. Again, I would reserve leave for submissions to the contrary, in this case from either side.
ORDERS
45 Accordingly, I propose the following orders:
- 1. Appeal dismissed.
2. Confidential affidavits read below to be placed in a sealed envelope and not to be accessed without the order of a Supreme Court judge.
3. Order that the judgment of Fullerton J and this judgment not be published for a period of six months from today.
4. Leave to the parties to make submissions concerning orders 2 and 3 and concerning costs, such submissions to be made within 28 days.
46 HISLOP J: I agree with Hodgson JA.
47 LATHAM J: I agree with Hodgson JA.
12/03/2008 - redacted form of judgment published - Paragraph(s) 11, 12, 13, 17, 40, 44 12/03/2008 - redacted form of judgment delivered on 5 November 2007 - Paragraph(s) 11, 12, 13, 17, 40, 44 02/12/2008 - restriction on publication of unredacted version of judgment extended to 31 October 2010 - Paragraph(s) header
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