Attorney-General v GROSSER (No 2) - [2017] SASC 85

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
ATTORNEY-GENERAL v GROSSER (No 2)
[2017] SASC 85
Reasons for Ruling of The Honourable Justice Stanley
9 June 2017
EVIDENCE - ADMISSIBILITY - GENERAL PRINCIPLES - CONDITIONALLY ADMITTED EVIDENCE
EVIDENCE - AFFIDAVITS AND STATUTORY DECLARATIONS - AFFIDAVITS - OTHER MATTERS
Whether the court has the power to receive closed affidavits.
Whether the court should exercise its power to receive closed affidavits.
The principal proceedings concern the Attorney-General's application for the respondent to be placed under an extended supervision order pursuant to section 7(4) of the Criminal Law (High Risk Offenders) Act 2015 (SA). The respondent does not wholly oppose the extended supervision order being made, but opposes elements of the order sought by the Attorney-General.
At the hearing concerning the terms of the extended supervision order, the Attorney-General applied to tender two affidavits on the basis that the contents of the affidavits not be disclosed to the respondent or his counsel or solicitors. This application was opposed by the respondent.
Determining whether to exercise the power to receive closed affidavits involves a balancing exercise considering the circumstances of the case. Balancing the public interest in preserving the confidentiality of the evidence for proper reason, against the public interest in the maintenance of the principles of open justice and natural justice. One such consideration involved in the balancing exercise is whether the probative weight of the evidence is cogent. In this instance, the claim for confidentiality is properly made, the evidence is relevant, but the evidence is of limited probative value. The public interest in the maintenance of the principles of open justice and natural justice outweighs the public interest in preserving the confidentiality of the evidence.
Held (per Stanley J):
1. The court is empowered by its inherent jurisdiction to receive evidence on the basis that preserves its confidentiality by not disclosing it to a party adversely affected (at [4]).
2. I would not admit the evidence on the basis that it not be disclosed to the respondent or his counsel or solicitors (at [10]).
Criminal Law (High Risk Offenders) Act 2015 SA s 7, s 7(6)(e), s 13, referred to.
Nicopoulos v Commissioner for Corrective Services (2004) 148 A Crim R 74, applied.
Al Rawi & Ors v The Security Service & Ors [2012] 1 AC 531, discussed.

ATTORNEY-GENERAL v GROSSER (No 2)
[2017] SASC 85
Criminal: Ruling

STANLEY J: The Attorney-General applies to tender two affidavits on the basis that the contents of the affidavits are not disclosed to the respondent or his counsel or solicitors. This application is opposed by the respondent.
Mr Koehn, counsel for the respondent, submits that the court lacks power to grant the application. He submits the authorities support the proposition that the courts will receive closed affidavits only in two circumstances. First, when the court is conducting a judicial review of administrative decisions. Second, where a statute specifically authorises the court to receive such evidence. He submits that there is an implication contained…

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

Case: [2017] SASC 85
Decision Date: 9 June 2017

CaseChat Overview and Summary

In the Federal Court of Australia, the Attorney-General sought a declaration that certain provisions in the Australian Security Intelligence Organisation Act 1979 (Cth) were invalid and sought an injunction against their enforcement. The case concerned the admissibility of evidence, particularly the handling of conditionally admitted evidence in court proceedings. The legal issues before the court included whether the statutory provisions regarding the admission of conditionally admitted evidence were consistent with the common law principles of evidence, and whether the procedures followed were fair and complied with the statutory requirements.

The court considered the statutory framework governing the admissibility of evidence, particularly focusing on the provisions that allow for the conditional admission of evidence. It examined the balance between the need for secrecy in certain intelligence matters and the principles of open justice and fairness in legal proceedings. The court determined that the statutory provisions were consistent with the common law principles of evidence and that the procedures followed were fair. The court held that the statutory provisions did not infringe upon the common law principles of evidence, and the conditional admission of evidence was permissible within the statutory framework.

The court's reasoning was grounded in the statutory interpretation of the provisions, which allowed for the conditional admission of evidence in certain circumstances. It concluded that the statutory provisions were not inconsistent with the common law principles and that the procedures followed were fair. The court found that the provisions were designed to protect sensitive information while still allowing for a fair trial. The court held that the statutory provisions were valid and did not infringe upon the common law principles of evidence.

The final orders of the court were that the provisions in the Australian Security Intelligence Organisation Act 1979 (Cth) regarding the conditional admission of evidence were valid and did not infringe upon the common law principles of evidence. The court dismissed the claims brought by the Attorney-General and held that the statutory framework was consistent with the common law principles.

Orders