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

1. 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.

2. 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 in the provisions of s 7(6)(e) and s 13 of the Criminal Law (High Risk Offenders) Act 2015 (SA) that the court would not receive evidence on the basis that it is not disclosed to a respondent. He submits that s 7(6)(e) which requires the court, in determining whether to make an extended supervision order, to take into consideration any relevant representations that the respondent wishes to put to the court would be rendered nugatory if the respondent was unaware of the evidence admitted in support of the making of an extended supervision order. Likewise, a respondent would be impermissibly prejudiced in seeking to have an extended supervision order revoked or varied pursuant to s 13 where the person subject to the supervision order was unaware of the evidentiary basis upon which the order was originally made. Accordingly, Mr Koehn submits that it is not within the court’s power to receive the evidence on the basis sought by the Attorney-General. In the alternative, he submits that the court should not receive the evidence, even if empowered to do so. He submits that the receipt of evidence on that basis would be unfair and a denial of natural justice and the principle of open justice.

3. Mr Wait SC, counsel for the Attorney-General, submits that the power of the court to admit evidence and withhold it from the affected party, where it is necessary to do so in the interests of justice, flows from the inherent jurisdiction of the court.  Where there is tension between the principles of open justice and confidentiality, this should usually be resolved in favour of open justice. However the authorities recognise that there are exceptions.  He submits this is one of those exceptions where the court should receive evidence that is relevant to the determination of the dispute in relation to the terms of an extended supervision order and there is a need to maintain confidentiality in relation to that evidence.

4. In my view, the court is empowered to receive evidence on a basis that preserves its confidentiality by not disclosing it to a party adversely affected.  That power flows from the inherent jurisdiction of the court.[1]  I do not accept that there is an implication to the contrary in the statutory obligation on the court to take into consideration any relevant representations that the respondent may desire to put to the court on an application for an extended supervision order.  The imposition of the obligation to consider any relevant representation does not preclude the court from receiving evidence on a basis that the evidence is confidential to the court.  The imposition of a positive obligation to consider such representations does not imply a negative restriction on the basis upon which the court could otherwise exercise the powers it enjoys to receive evidence on a confidential basis where that is considered necessary in the interests of justice.  While I accept that there might be some impairment in a person’s capacity to make submissions on an application for revocation or variation of an extended supervision order where some of the evidence on which the order was originally made is not known to that person, that fact does not necessarily give rise to the implication for which the respondent contends.  That will always be the consequence of the exercise of the power derived from the court’s inherent jurisdiction.  If the legislature intended to repeal that power, I expect it would have done so expressly rather than by implication.

   [1]    Nicopoulos v Commissioner for Corrective Services [2004] NSWSC 562 at [88], (2004) 148 A Crim R 74 at 92.

5. Whether the court should exercise such power is a different question.  That involves a balancing exercise.  Circumstances may vary greatly.  The court must weigh the interests of the proper determination of issues on all the evidence relevant to those issues against the legitimate preservation of the confidentiality of information available to the police and correctional services.  There are competing public interests involved.  On the one hand, there is the public interest in preserving confidential information.  On the other hand, there is the public interest in making it available to the party adversely affected so that party can respond to that evidence. 

6. In Al Rawi & Ors v The Security Service & Ors,[2] Lord Dyson said there are certain features of a common law trial which are fundamental to our system of justice.  First, subject to certain established and limited exceptions, trials should be conducted and judgments given in public.  This principle of open justice is not a mere procedural rule.  It is a fundamental common law principle.  Second, trials are conducted on the basis of the principle of natural justice.  A party has a right to know the case against him and the evidence on which it is based.  He is entitled to have the opportunity to respond to any such evidence and to any submissions made by the other side.  The other side may not advance contentions or adduce evidence of which he is kept in ignorance.  The parties should be given an opportunity to call their own witnesses and to cross-examine the opposing witnesses. 

   [2] [2011] UKSC 34 at [10]-[13], [2012] 1 AC 531 at 572-573.

7. In my view these principles are of such central importance that they should only be modified where the interests of justice clearly demand it.  While there are a range of factors to consider in undertaking the balancing exercise, for the court to accede to the application by the Attorney‑General to admit these affidavits into evidence, while not disclosing the evidence to the respondent, the public interest in maintaining the confidentiality of that material must be compelling.  If the probative weight of the evidence concerned is cogent, that would be a factor weighing in favour of admission of the material.  If disclosure would pose a serious risk to the proper conduct of policing or correctional services or the physical safety of members of the public, that would be a factor weighing against disclosure.  If an order for disclosure would result in the party pressing the tender consequently refraining from doing so, resulting in relevant evidence being denied to the court thereby reducing the chances of reaching the right result, that would be a factor weighing against disclosure. However, if disclosure of the evidence to the party adversely affected is necessary to protect fundamental legal or civil rights, that would be a factor weighing in favour of admission of the evidence only on condition it was disclosed to the other party.  These considerations are not exhaustive. 

8. For the purposes of undertaking the balancing exercise required, I read the affidavits sought to be tendered.  My reasons in relation to this material necessarily must be opaque otherwise the confidentiality of the material would be imperilled.  Having considered that material, I am satisfied that the claim for confidentiality is properly made.  I am also satisfied the evidence is relevant.  However, I consider that its probative weight is not great.

9. In this case, the evidence sought to be adduced is of limited probative value.  That is a factor weighing against its admission without disclosure to the respondent.  It is at least conceivable that the respondent may have some response to the evidence which might further erode its probative value.  While there is a legitimate claim to the preservation of the confidentiality of the evidence, given its nature, I do not consider that the public interest in preserving the confidentiality of the evidence is compelling, given the great public interest in the maintenance of the principles of open justice and natural justice.  In this case, those principles outweigh the legitimate interest in non‑disclosure of that evidence.

10. For these reasons, I would not admit the evidence on the basis that it would not be disclosed to the respondent or his counsel or solicitors.  In these circumstances, Mr Wait indicated that the Attorney-General would not press the tender of the affidavits.  Of course, I will put the evidence out of my mind when deciding the application.