Brennan v State of New South Wales

[2006] NSWSC 167

CITATION:	BRENNAN v. STATE OF NEW SOUTH WALES [2006] NSWSC 167 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	6 to 9 March, 14 March 2006
JUDGMENT DATE :	22 March 2006
JURISDICTION:	Common Law
JUDGMENT OF:	Hall J at 1
DECISION:	Order that the portions of the transcript of proceedings referred to in Table 1 set out in the Schedule to this judgment not be published. The contents of documents in Exhibit A behind Tab 15 not be published except for references to “life management” and “stress management” on pp.17 and 18 of the 1988 Pilot Course Documentation and to “Subject No. 28 Life Management” (p.35 of the Course Documentation) and “Subject No. 31 Stress Management” on p.36 of the Course Documentation. The applicant is to provide to my associate within three days of the delivery of this judgment an edited version of Exhibit C. That document will then be given a discrete exhibit number and become a public exhibit without restriction in the proceedings and placed with the file.
LEGISLATION CITED:	Criminal Procedure Act 2005 Supreme Court Act 1896 Evidence Act 1995
CASES CITED:	Sankey v. Whitlam (1978) 142 CLR 1 Re Application by Chief Commissioner of Police (Vic.) for leave to appeal (2004) 9 VR 275 R. v. Mentuck (2001) 3 SCR 442 Attorney General for NSW v. Mayas (1988) 14 NSWLR 345 D v. National Society for Prevention of Cruelty to Children [1978] AC 171 Raybox Aust. Pty. Limited v. Jones (1985) 2 NSWLR 47 Scott v. Scott [1913] AC 417 Russell v. Russell (1976) 134 CLR 495 David Syme & Co. Limited v. General Motors [1984] 2 NSWLR 294 John Fairfax Publications v. District Court of NSW (2004) 61 NSWLR 344 John Fairfax v. Ryde Local Court (2005) 62 NSWLR 512 John Fairfax & Sons Limited v. Police Tribunal of NSW (1986) 5 NSWLR 465 John Fairfax v. Police Tribunal ex parte Queensland Law Society [1984] 1 Qd. R. 166 John Fairfax Group Limited v. Local Court of NSW (1991) 26 NSWLR 131 Herald & Weekly Times Limited v. Medical Practitioners Board of Victoria (1999) 1 VR 267 Alister v. The Queen (1984) 154 CLR 405 Woodroffe v. National Crime Authority [1999] FCA 1128 Young v. Quinn (1985) 59 ALR 225 Beneficial Finance Corporation Limited v. Commissioner of Australian Federal Police (1991) 103 ALR 167 Re application by Chief Inspector of Police (Vic.) [2004] FSCA 3 R v ONE (2001) 3 SCR 478 Queen v. Rogerson (1991-92) 174 CLR 268 Cain v. Glass (No. 2) (1985) 3 NSWLR 230 R v. Smith (1996) 86 A. Crim. R. 308 R v. McKelliff [2004] SASC 63
PARTIES:	BRENNAN, Susan Lynette v. STATE OF NEW SOUTH WALES
FILE NUMBER(S):	SC No. 20300/2005
COUNSEL:	P: B. Stratton, QC./G. Jones D: I.G. Harrison, SC./D. Mallon Comm. Police: P. Singleton Nationwide News/John Fairfax: T. Blackburn, SC./T. Maltz
SOLICITORS:	P: John Orford & Associates D: I.V. Knight Comm. Police: I.V. Knight Nationwide News/John Fairfax: Blake Dawson Waldron
LOWER COURT DATE OF DECISION:	06/03/2006

This is a redacted version of the judgment.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HALL, J.

WEDNESDAY 22 MARCH 2006

No. 20300 of 2005

SUSAN LYNETTE BRENNAN v. STATE OF NEW SOUTH WALES

JUDGMENT
On application by Commissioner of Police

1 HALL, J: The substantive proceedings have been resolved between the plaintiff and the defendant. There remains outstanding a number of issues raised on an application by the Commissioner of Police for non-publication orders in relation to specific matters, the subject of evidence and submissions. I will refer to this application in greater detail below. Before doing so, it is necessary to provide an outline the nature of the substantive proceedings and to then deal with issues that remain to be determined on the notice of motion.

2 The plaintiff instituted proceedings in the District Court of New South Wales against the State of New South Wales claiming damages with respect to psychiatric injury which she claims she sustained in the course of her employment with the then New South Wales Police Force.

3 The plaintiff commenced employment as a police officer on 25 February 1974. In the course of her employment, she claims that she was engaged for some six or seven years in undercover work (between 1978 until late 1984) and alleges that by reason of the highly stressful nature of the work and her lack of training and support, she in due course suffered a major depressive illness and an adjustment disorder.

4 There was a further aspect to the claim which relates to her being assigned to alternative police duties at a relatively senior level that she claimed she was not trained for nor subject to any assessment to determine whether she held the necessary competency. That work apparently is said to have exacerbated or contributed to her depressive illness and adjustment disorder.

5 The proceedings were listed for hearing to commence yesterday, 6 March 2006. The proceedings had been set down as a three week fixture. Mr. Bruce Stratton, QC. with Mr. Greg Jones of counsel appeared on behalf of the plaintiff. Mr. Ian Harrison, SC. with Mr. D. Mallon of counsel appeared on behalf of the State of New South Wales.

6 At the outset of the hearing, Mr. P. Singleton appeared on behalf of the Commissioner of Police and sought leave to file the notice of motion together with a confidential affidavit sworn 6 March 2006 in support. Leave was granted for documents to be filed in court. Exhibited to the confidential affidavit was a folder of documents entitled “Confidential Exhibit ‘APS-1’”.

7 On 7 March 2006, Mr. Blackburn, SC. with Mr. T. Maltz of counsel sought and were granted leave to appear on behalf of Nationwide News and John Fairfax Publications for the purpose of making submissions on the Commissioner of Police’s application. On that date, Mr. Blackburn, SC. made a number of submissions. He has been provided with some, but not all of the, information that had been provided to other counsel on the basis of undertakings given by them to the court.

(1) Confidential affidavit

8 In the confidential affidavit (later edited to delete the names of former operatives) made by Deputy Commissioner Scipione, it is stated (paragraph [2]) that disclosure of information referred to in the affidavit “… would be harmful to the public interest ..”. The deponent relies upon information set out in paragraphs [5] to [31] of the affidavit provided to him by an officer in the Special Services Group New South Wales Police.

9 Paragraphs [4] to [9] inclusive deal with the identity of former undercover police officers. The affidavit (paragraph [7]) sets forth the objection of the Commissioner of Police on the basis of public interest immunity to the further disclosure, beyond that stated in the documents, of the names of, or material capable of identifying, the officers or former officers named in the affidavit.

10 The affidavit (paragraph [8]) stated that it would be contrary to the public interest to disclose the identities of current or former undercover police officers. The deponent stated that undercover police officers perform dangerous work in the detection, prevention and investigation of serious criminal activity. The concern is that disclosure of the identity of particular persons who have acted in an undercover capacity could lead to reprisals. Additionally, it is stated that if high levels of protection are not afforded to such officers then it would become difficult to recruit officers willing to undertake the important but dangerous work of an undercover police officer. Mr. Singleton of counsel emphasised each of these matters in submissions.

11 The balance of the confidential affidavit, inter alia, addresses specific documents, being those contained within confidential Exhibit “APS-1”.

(2) Interim non-publication orders

12 On 6 March 2006, I made interim non-publication orders in relation to the following:-

(a) the opening address by Mr. Stratton, QC.;

(b) a non-publication order in respect of Exhibit C until further order;

(c) non-publication orders with respect to four specific topics in the plaintiff’s evidence in chief (see below);

13 On 9 March 2006, a non-publication order was made suppressing the plaintiff’s name, her address, the plaintiff’s daughter’s name and the name of the father of the plaintiff’s daughter.

14 I subsequently revoked the interim non-publication orders in respect of the plaintiff’s name and of three of the four specific topics referred to in (c) above.

15 The plaintiff commenced her evidence on Monday 6 March 2006. During the course of her evidence in chief, Mr. Singleton of counsel identified four specific topics upon which he sought orders suppressing her evidence. The were:-

(a) Evidence as to the role play of undercover operatives in the hierarchy of persons involved in the drug trade.

(b) The deployment of informers in relation to undercover operations.

(c) The actual supply of drugs in the course of an undercover operation.

(d) The role of an undercover officer said to be in the nature of a mediator between the various persons involved in an undercover operation.

16 Mr. Singleton initially contended that each of these matters disclosed the methods or procedures associated with undercover operations and that public disclosure of them could compromise the effectiveness or the integrity of undercover operations in the future. On that basis, I made interim orders.

17 Mr. Singleton announced on Tuesday 7 March 2006, that, having taken specific instructions in relation to the matters referred to in [15], the claim of public interest immunity was only pressed with respect to (b) above. In that respect, he relied upon the confidential affidavit of Christopher Evans sworn 7 March 2006.

(3) Submissions on behalf of the Nationwide News and John Fairfax Publications

18 Mr. Blackburn, SC. focused attention upon a number of matters including the claimed inadequacy of the confidential affidavit of the Deputy Commissioner Scipione. He submitted that paragraph [14] to the affidavit was a “mantra” which was simply repeated in paragraph [25] and [29] and that there had been no attempt to explain why disclosure would have the effect suggested.

19 Mr. Blackburn relied in this respect upon observations of Mason, J. in Sankey v. Whitlam (1978) 142 CLR 1 at 38 at 96. There, his Honour referred to the need, in order to evaluate a submission in relation to public interest immunity to identify the various elements which are said to sustain the public interest against production of documents of the kind there in question. His Honour stated that in identifying those elements, little assistance was gained from the affidavits in that case and that ministers and heads of department had sought refuge “in the amorphous statement, that non-disclosure is necessary for the proper functioning of the Executive Government and that the public service, without saying why disclosure would be detrimental to their functions, except for the reference to want of candour”.

20 Mr. Blackburn also relied upon the fact that the events concerning the plaintiff’s proceedings occurred decades ago, that there was no suggestion of current investigations being impaired by any of the material or evidence in question and that, in any event, many of the procedures employed in undercover operations have been the subject of exposure in criminal proceedings heard in various courts. In this respect, he drew my attention to paragraph [42] in Re application by Chief Commissioner of Police (Vic.) for leave to appeal (2004) 9 VR 275.

21 Mr. Blackburn contended that the claim by the Commissioner of Police was not in fact based on public interest immunity and was simply based on the powers of the court to make suppression or non-publication orders.

22 Finally, Mr. Blackburn emphasised that the evidence did not indicate that there would be harm resulting from exposure of the material for which non-publication orders were brought and that this was a case in which issues in question, including policy matters concerning undercover officers is a matter of real public interest and should not be suppressed. In this respect he referred to the Canadian decision in R. v. Mentuck (2001) 3 SCR 442 at [38], [30], [41], [43], [49] and [50] (as to which see paragraphs [47] to [49].

(4) The submissions on behalf of the Commissioner of Police

23 Mr. Singleton contended that his client’s claim was based on public interest immunity principles and that the balancing exercise this Court was required to perform favoured non-disclosure.

24 He emphasised that the claim of public interest immunity was a substantive rule of law and not a mere evidentiary principle. He, in particular, referred to Attorney-General for New South Wales v. Mayas (1988) 14 NSWLR, in particular to what was there stated by Mahoney, JA. at pp.345-346.

25 He also contended that the material in the confidential affidavit was not bland assertion but contained sufficient detail to establish the elements or bases for the Commissioner’s claim.

26 It was also contended on behalf of the Commissioner that information concerning procedures associated with undercover operations have not been shown to have entered the public domain. It is unnecessary here to specifically respond to this submission other than to observe that the decision of the Victorian Court of Appeal, to which I have referred above, itself makes reference to that fact. At the end of the day, the Commissioner’s application, at least so far as the relevant documents in confidential Exhibit APS-1 are to an extent at least concerned, intent on preventing re-publication of some material as has been referred to in published works, including reports of criminal proceedings and the popular media. This is an aspect considered in the above Canadian Supreme Court matter in Mentuck (supra).

27 The application by the Commissioner can be said to relate to:-

(a) The names of police or former police operatives.

(b) Evidence given by the plaintiff on 6 March 2006 relating to the deployment of informers in relation to undercover operations.

(c) The [XXXXX XXXXX ].

(d) The drug policy issue.

(e) The Education Submission (Tab 15 of Exhibit A).

(5) Relevant principles

(i) The power to make non-publication orders

28 The court has both statutory power under s.72 of the Criminal Procedure Act 2005 (to prevent publication of the identity of parties to proceedings and witnesses) as well as an inherent jurisdiction to make such orders as may be necessary to secure the proper administration of justice in proceedings.

(ii) The open justice principle

29 The principle of open justice is one of the most fundamental and deeply-rooted characteristics of the common law tradition. That principle holds to the proposition that judicial proceedings are normally conducted in open court: Australian Media Law but Butler and Rodrick, 2nd ed., 2004, Law Book Company, Ch.4, p.169.

30 The general rule as to the open administration of justice principle has been the subject of considerable attention. In Raybos Australia Pty. Limited v. Jones (1985) 2 NSWLR 47, Kirby, P. (as he then was) discussed the relevant history of the courts and the elucidation of the reasons for the open administration of justice from that history. His Honour observed (at p.50) that even Star Chamber cases were heard publicly. His Honour referred to the leading authority on the open administration of justice, Scott v. Scott [1913] AC 417 wherein Earl Loreburn (with whom Lord Haldan, LC. and the Earl of Hallsbury agreed) made it clear that a trial judge’s discretion to hear matters in private was controlled by limitations. He denied that the High Court had an unqualified power, in its discretion, to hear civil cases behind closed doors. He declared (at 445) that “the inveterate rule is that justice shall be administered in open Court”. Only where the subject matter of the action would be destroyed by a hearing in open court or where there was a well-settled exception to the general rule, might the doors be closed. Kirby, P., in Raybos, discussed how the long line of English authority has found reflection in Australia citing the High Court’s decision in Russell v. Russell (1976) 134 CLR 495. The New South Wales Court of Appeal has made it plain that legal proceedings should be heard in public unless the contrary is clearly intended by the dictates of justice: David Syme & Co. Limited v. General Motors-Holden’s Limited [1984] 2 NSWLR 294 at 299, 307.

31 In Raybos it was also held, in relation to the power to forbid publication of proceedings, that the principles which support and justify the open doors of our courts likewise require that what passes in court should be capable of being reported. The entitlement to report to the public at large what is seen and heard in open court is a corollary of the access to the court of those members of the public who choose to attend.

32 The open justice principle has, in more recent times, in the context of non-publication orders been the subject of consideration by the New South Wales Court of Appeal: see John Fairfax Publications Pty. Limited v. District Court of New South Wales (2004) 61 NSWLR 344, in particular, Spigelman, CJ. at 356-364. See also John Fairfax v. Ryde Local Court (2005) 62 NSWLR 512.

33 Spigelman, CJ. in John Fairfax Publications Pty. Limited v. District Court of New South Wales (supra), again emphasised that the principle of open justice is one of the most fundamental aspects of the system of justice in Australia and that the exceptions to that principle are few and strictly defined and further that the courts will not add to the list of exceptions but, of course, Parliament can do so, subject to any constitutional constraints. The Chief Justice also emphasised that whilst, from time to time, non-publication orders are made, any such order must, in the light of the principle of open justice, be regarded as exceptional (at p.353).

34 The existence of and limitations upon a power to make a non-publication order need not here be referred to in detail. They are set out in the leading authority of John Fairfax & Sons Limited v. Police Tribunal of New South Wales (1986) 5 NSWLR 465.

35 In John Fairfax Publications Pty. Limited v. District Court (supra), Spigelman, CJ. observed that much of the relevant case law on non-publication orders is concerned with courts which have an inherent jurisdiction:-

“In such a case, a test of necessity is applied to the exercise of the power to make an order, as distinct from determining the existence of the power. In the context of an implied power, the two levels are analytically distinct but, as a practical matter, there will rarely be any need to differentiate between the two levels …” (at p.356)

36 In John Fairfax & Sons Limited v. Police Tribunal (supra), McHugh, JA. (as he then was) at 476, observed that a court can only depart from the fundamental rule of the common law that the administration of justice must take place in open court where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule. In that case, his Honour stated:-

“… an order of a court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice in proceedings before it.”

37 McHugh, JA. also emphasised that an order prohibiting publication of evidence must be clear in its terms and do no more than is necessary to achieve the due administration of justice. The order must also be reasonably necessary and there must be some material before the court upon which it can reasonably reach the conclusion that it is necessary to make an order prohibiting publication. McHugh, JA. also observed that mere belief that the order is necessary is insufficient.

38 Exceptions to the principle of open justice have been recognised. It is not necessary here for me to detail each of the exceptions. It is sufficient to say that there is a distinction between the power to make a non-publication order on the one hand, and the occasion for its exercise on the other. See also observations of McPherson, J. in John Fairfax v. Police Tribunal, in ex parte Queensland Law Society [1984] 1 Qd. R. 166 at 170. The question posed in the present proceedings is whether there is a public interest in the suppression of particular information concerning undercover policy methodology sufficient to establish the public interest immunity claimed.

39 As to whether a court, in the absence of legislative authority, has power to make an order, binding on persons outside the court, the judgments of the various courts “do not speak with one voice”: Herald & Weekly Times Limited v. Medical Practitioners Board of Victoria (1999) 1 VR 267 at 278. See, in particular John Fairfax Publications Pty. Limited v. District Court of New South Wales (2004) 61 NSWLR 344 including discussion of the inherent jurisdiction of the Supreme Court and the jurisdiction of the District Court by Spigelman, CJ. at 353-364.

40 However, a superior court of record does have the power to make an order suppressing the publication of documents or evidence provided that there is a proper basis for doing so. The contrary was not argued in these proceedings.

41 Public interest immunity is a rule of substantive law and, where applicable (as the Commissioner claims here), it operates to permit documents or information to be withheld in the public interest from a party to criminal or civil proceedings and from being otherwise published. In general terms, the immunity protects information, the disclosure of which would tend to harm the public interest, whether held by a member of the executive government or otherwise. It is the name given to a body of substantive and procedural rules whereby information that is otherwise relevant is withheld on the ground that the public interest in disclosure is outweighed by a competing public interest in its suppression or non-disclosure: see generally Alister v. The Queen (1984) 154 CLR 405.

42 The proceedings, having now been settled, the issue now becomes whether public interest immunity operates to prevent publication of specific evidence and submissions touching or concerning the particular issues which I will identify below.

Application of relevant principles to police methods and procedures

43 There has been surprisingly little judicial analysis of the application of public interest immunity to undercover police processes, including in particular, strategies and methodologies.

44 In addition to protecting ongoing and/or future investigations, immunity may also be claimed to prevent the disclosure of information that would reveal police methods of operation or of information which tends to disclose the channels by which police obtain their information: Woodroffe v. National Crime Authority [1999] FCA 1128 (Mansfield, J.); Young v. Quinn (1985) 59 ALR 225 at 234; Beneficial Finance Corporation Limited v. Commissioner of Australian Federal Police (1991) 103 ALR 167.

45 Re application by Chief Inspector of Police (Vic.) [2004] VSCA 3 (Winneke, P., Ormiston, Vincent, JJA.) adverted to the following propositions:-

• The law recognises that there may be circumstances in which, by reason of the presence of some highly important public interest consideration , a need arises to suppress the publication of some part of the evidence given in what would otherwise be a publicly conducted criminal trial.

• It is understood, at the same time, that the inappropriate use of suppression orders poses the potential to jeopardise both the fact and the perception of the transparency and justice of our trial processes, whether in civil or criminal matters.

• A court can only depart from the open justice principle when its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule. As stated above, an order prohibiting publication of evidence is “only valid if it is really necessary to secure the proper administration of justice in proceedings before it” : see John Fairfax & Sons Limited v. Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476-477.

• There is a question as to the power in the court to make a non-publication order which is directed to circumstances going beyond the administration of justice. This was an issue upon which Kirby, P. did not find it necessary to arrive a firm conclusion in Raybos (supra) at 55.

• There is a need for caution when considering a power to preclude publication which is not founded on the need to avoid prejudicing the administration of justice.

• Even in claims to protect the administration of justice, there will ordinarily be competing public policy considerations, especially where the order sought is intended to ensure the fair trial of an accused, whether in the instant trial or in some other trial.

• On the other hand, where the order sought is founded on other considerations, one must be particularly careful not to deny the general principle of an open trial.

• Avoiding a risk to an individual potential witness can fairly be justified on the basis of protecting the administration of justice.

46 I have been assisted by the propositions extracted in [45]. However, it is to be observed that the decision in Re application by Chief Commissioner of Police (Vic.)for leave to appeal, in relation to ‘suppression orders’ was not specifically decided upon the basis of public interest immunity, although there was a brief statement as to the recognition by the law of the need in some circumstances to suppress publication in the presence of some “highly important public interest consideration”. The orders in the case were sought upon the basis of an express power in the Supreme Court of Victoria provided by s.18 of the Supreme Court Act 1986.

The Canadian approach to publication bans on police undercover operations

47 The general approach taken in the decisions, on appeal, in the Supreme Court of Canada in R. v. Mentuck (2001) 3 SCR 442 and in R. v. O.N.E (2001) 3 SCR 478 are considered below.

48 In Mentuck it was stated that “a publication ban” should only be ordered when:-

(a) such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and

(b) where the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice.

49 The following propositions may be taken as established by the judgment in Mentuck:-

(a) In determining what is necessary to prevent a serious risk to the proper administration of justice, the concept of “necessity” involves the notion that the risk in question is a serious one (or a “real and substantial risk” ). It must be a risk, the reality of which is well-grounded in the evidence.

(b) Caution must be exercised in deciding what can be regarded as part of the administration of justice. It was stated that obviously the use of police operatives and informers is part of the administration of justice, as are such practices as witness protection programmes. (However, the position in Australia in this respect is different. See The Queen v. Rogerson (1991-1992) 174 CLR 268 at 276-277. However, “… courts should not interpret that term so widely as to keep secret a vast amount of enforcement information, the disclosure of which would be compatible with the public interest” : Mentuck (supra) at 464.

(c) Because the presumption that courts should be open and reporting of their proceedings should be uncensored is so strong and so highly valued a judge must have a convincing evidentiary basis for issuing a ban.

(d) Effective investigation and evidence gathering, while important in its own right, should not be regarded as weakening the strong presumptive public interest.

(e) Where the level of detail claimed to constitute a danger to ongoing and future operations, if disclosed, is relatively general in nature, that fact is relevant to the strength of the claim for non-disclosure.

(f) The serious risk at issue in relation to general questions as to undercover police operations is likely to be the efficacy of present and future police operations and the extent to which they will be reduced by publication of details concerning the operations or methodologies.

(g) Whilst operations will be compromised if suspects learn that they are targets, doubt has been expressed that media publication will seriously increase the rate of compromise. The absence of evidence, or evidence of only a limited number of instances in which media reports arguably resulted in the compromise of an operation is relevant in assessing the claim for a ban on publication of operational methods.

(h) The danger to the efficacy of an undercover operation is not significantly increased by re-publication in the media of the details of similar operations that have already been well-publicised in the past.

(i) On that basis, it is the incremental effect of the proposed ban, viewed in light of what has already been published before, that must be evaluated.

(j) Accordingly, re-publication of such information will not necessarily constitute a serious risk to the efficacy of police operations, and thus to that aspect of the proper administration of justice.

The basis for the public interest immunity claim

50 The application by the Commissioner of Police distinguishes between oral evidence, documentary evidence and submissions in terms of specific topics. As a matter of principle, in relation to the exclusion of evidence on the ground of public interest immunity, no distinction is made between oral evidence and documentary evidence: Sankey v. Whitlam (1978) 142 CLR 1 at 38.

51 The issue in the present case is not, as I have earlier stated, one involving the public interest in the fair administration of justice (as to which see Alister (supra) at 412). It is the public interest in the non-disclosure of certain information in relation to specialised investigation methodology employed by police. The open justice principle is to be balanced against that interest.

52 It is necessary in determining the issue to consider the evidence as to whether disclosure would be injurious to the public interest: see Sankey (supra) per Gibbs, CJ. In that respect it is relevant to have regard to:-

(a) the confidential affidavits in support of the claim and the grounds and reasons disclosed therein;

(b) the nature of the evidence and the submissions and the contents of the relevant documents in order to determine their significance having regard to the generality or specificity of the content of the evidence, submissions or other material in determining whether disclosure would be injurious to the public interest;

(c) whether the information or material is relevant to ongoing or specific future investigations;

(d) whether the nature of the information or material discloses methodology, strategies or procedures in terms of detail that is not usually disclosed by evidence given in the course of criminal trials.

Consideration

53 I have referred to authority (paragraph [44]) which supports the proposition that public interest immunity may be claimed in respect of information that would reveal police methods of operation or of information which tends to disclose the channels by which police obtain their information.

54 Undercover police operations represent a specialist field of investigation, particularly in relation to criminal activity performed in secret, including organised crime, terrorist activity and conspiracies to commit crime and in so-called victimless crime (eg., corruption) and in some areas of illicit activity including drug related matters. The importance of this specialised field of investigation has been statutorily recognised with the enactment of controlled operations legislation both at the Federal and State levels.

55 By reason of the difficulties and often the danger associated with undercover police operations, a court in an application such as the present must, in my opinion, be mindful of the sensitivity of information in relation to police training and operational work which, if disclosed, may assist those involved in criminal activity in detecting the presence of an undercover police officer. This particular public interest must, however, be properly evaluated in the context of the open justice principle.

56 I turn to consider the Commissioner’s application in terms of Tables I, II and III set out in the “Schedule of References” document dated 15 March 2006, to which I have already referred, the terms of which are set out in the Schedule to this judgment.

Table I: Aspects of the role of informers in undercover police operations

57 Table I identifies by line and page reference, references to the abovementioned topic in the opening address of Senior Counsel, in the evidence of the plaintiff and in submissions of counsel for the Commissioner of Police. There are seven page references in all with specific phrases or lines identified.

58 The references in question do not relate to specific investigations or to specific informers, but in general terms to an identified aspect of police undercover operations involving the use of informers.

59 More specifically, the identified passages relate to a method whereby undercover police officers, with the assistance of informers, infiltrate a group known or suspected to be engaged in unlawful activities.

60 In the confidential affidavit sworn by Christopher Evans on 7 March 2006, reference is made to the methodology as one still in use during undercover operations. The affidavit (paragraph [6]) refers to the first phase of operations as one often involving informers and that disclosure of this aspect of undercover operations methodology may have adverse consequences as disclosed in paragraphs [7] and [8] of the affidavit, including, in particular, risk to informers. In paragraph [9] the significance of the informer and his or her role as an important investigative tool is identified.

61 In assessing the claim in relation to Table I, the Court is mindful of the fact that evidence in particular criminal proceedings has, from time to time, necessarily disclosed police undercover methodology in certain of its aspects. However, the deployment of informers in relation to undercover operations is potentially a matter of particular sensitivity. It is unnecessary here to traverse the principles concerning the need to protect informer identification and the rationale underpinning the same. It is sufficient to refer to the principles in this respect discussed in cases such as D v. National Society for Prevention of Cruelty to Children (1978) AC 171, R. v. Smith (1996) 86 A. Crim. R. 308 and Cain v. Glass (No. 2) (1985) 3 NSWLR 230 per Kirby, P. (as he then was) at 233-234 and McHugh, JA. (as he then was) at 247. See also R v. McKelliff [2004] SASC 63 at [19] to [26].

62 Having considered the particular passages identified in Table I, I am of the opinion that permanent non-disclosure orders should be made in respect of those passages for the following reasons:-

(a) The passages in the documents identified relate to the way in which informers are deployed in undercover or controlled operations in particular in the first stage of such operations.

(b) In the event of a successful operation, knowledge as to the strategic way in which informers are deployed in the initial stage of an operation may, by retrospective analysis, enable the identification (by the active participation) of the particular informer in the operation to be made apparent. This possibility should not be overemphasized but should not, in my opinion, be overlooked or dismissed as fanciful.

(c) Disclosure of the role of informers in relation to such operations on the evidence in support of the Commissioner’s application, could discourage informer participation.

(d) Disclosure of the manner in which informers participate in undercover/controlled operations could impair the effectiveness of such operations.

Table II: [XXXXX XXXX] police undercover operatives

63 The passages identified in Table II relate to passages in the opening address of Senior Counsel for the plaintiff and to submissions made on behalf of counsel for the Commissioner of Police concerning the question of [XXXXX XXXX] police undercover operatives.

64 On 6 March 2006 (transcript p.38), Mr. Singleton of counsel sought and obtained an interim non-publication order in respect of the question of [XXXXX XXXXX XXX] police undercover operatives. The application was based upon reference to this matter by senior counsel in his opening address. Counsel did not confirm or deny the accuracy of [XXXXX XXXXX ] which senior counsel suggested is now the practice adopted.

65 The submission in support of the interim non-publication order in respect of the matter [XXXXX XXXX] was that if it were known to those involved in illegal activities that [XXXXX XXXXX XXXXX XXXXX XXX], this could hamper or thwart various investigations and could jeopardise the operatives themselves. The risk, it was said, arose both in respect of undercover operations generally and also for those engaged in operations that were [XXXXX XXXXX XXXXX XXXXX XXXXX XXX].

66 The question of [XXXXX XXXXX XX] police undercover operatives and any risks that disclosure may bring is, however, a question not specifically addressed in the confidential affidavit of Deputy Commissioner Scipione sworn 6 March 2006 or of Assistant Commissioner Evans in his affidavit sworn 7 March 2006. Whilst the transcript reference, p.25, lines 30 to 35, expressly refers to current day practice concerning [XXXXX X XXXXX XXXXX XXXXX X], that alone is not sufficient to warrant a permanent non-publication order with respect to that and the other references in Table II.

67 In the circumstances, I am not persuaded that a permanent non-publication order ought to be made. However, before revoking the interim non-publication order made in respect of the transcript references to the [XXXXX XXXX] police undercover operatives, I consider the proper course is to permit the Commissioner of Police to place before the Court evidence bearing upon the matter. For this purpose I will allow a period of three days from the date of delivery of this judgment for such evidence to be filed or for any application in respect of the same to be made.

Table III: Policy on drug taking by undercover police officers

68 The application by the Commissioner of Police is confined to references at pp.115, 116 and 117. The Commissioner’s specific submission in relation to Table III is that considerable editing of p.116 is required.

69 The Commissioner of Police relies upon the confidential affidavit of Deputy Commissioner Scipione sworn 6 March 2006, in particular, paragraphs [25] and [26]. However, as matters presently stand and in light of the fact that the primary proceedings have been settled, there is no evidence to establish that the highlighted passages bear upon matters such as the following:-

(a) [XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX ];

(b) [XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XX];

(c) how any information contained in the highlighted passages could influence or impact adversely upon any particular investigation or class of investigation, strategy or methodology.

70 Having examined the highlighted passages on pp.115 and 116, I do not consider that a non-publication order should be made in relation to the highlighted passages in the transcript which arose in the exchange between the bench and counsel for the Commissioner of Police. That exchange as so recorded, does not disclose or refer to the contents of the policy [XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX ]. In other words, I do not consider that the transcript at the page references in question directly or indirectly disclose information that can be said to reveal the policy issue on the question of drug taking and, on that basis, it has not been established that there is any public interest in respect thereof which outweighs the open justice principle.

71 I accordingly decline to make a non-publication order in respect of the pages and passages identified in respect of Table III.

The exhibits

72 The Commissioner has made submissions in respect of Exhibits A and B, in particular, in relation to what is termed the Education Submission (under Tab 15 of Exhibit A).

73 Counsel for the Commissioner of Police emphasised the fact that the documents behind Tab 15, being part of Exhibit A, were admitted on a provisional basis, that is, provisionally subject to relevance being established (transcript 6 March 2006, p.3). The present application, accordingly, requires that a final ruling be made as to their relevance or otherwise and accordingly their admissibility.

74 I have accordingly reviewed the material behind Tab 15 of Exhibit A.

75 For evidence to be relevant, it must be evidence that, if accepted, could rationally effect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings: s.55 Evidence Act 1995 (NSW).

76 The documents behind Tab 15 relate to a 1988 pilot education course in respect of undercover operations. Apart from references (at pp.17 and 18) of the pilot course document and later references in the curriculum core topic area to “life management” and “stress management”, there is no other material which in any way is relevant to a fact in issue in the proceedings between the plaintiff and the defendant.

77 Accordingly, on this application, it is sufficient to record my ruling on the admissibility of Exhibit A, namely, that the documents under Tab 15 of Exhibit A are not relevant save for those discrete references to which I have referred in [76]. The documents behind Tab 18 are accordingly not admitted as part of the evidence in the proceedings save for those discrete references. The documents not admitted, accordingly, remain confidential police documents and do not constitute evidence in the proceedings. Accordingly, no publication order can be made with respect to them.

78 In relation to the documents containing the discrete references referred to in [76], no non-publication order is made in respect of them, as they do not possess the character of confidential documents as to police methodology.

Exhibit C

79 Exhibit C comprises a statement made by the plaintiff dated 16

February 1998. The exhibit relates to a particular investigation into the activities of named persons carried out in 1984 and in which the plaintiff participated.

80 The Commissioner of Police has submitted that the appropriate course is for an edited version of Exhibit C to be prepared. The edited version is one which would delete the names or other identifying information in relation to the person or persons who were the subject of that particular investigation but otherwise leave the document as evidence given in open court and as such is not suppressed from publication. On that basis, Exhibit C should be edited so that the names of the persons identified in Exhibit C are deleted and the edited version of Exhibit C will then be an open exhibit in the proceedings.

81 I direct the applicant provide to my associate within three days of the delivery of this judgment an edited version of Exhibit C. That document will then be given a discrete exhibit number and become a public exhibit without restriction in the proceedings and placed with the file.

82 The Commissioner has finally submitted that until transcript of proceedings of 8 March 2006 is available, there should be a non-publication order made in relation to the topics that have been made the subject of interim suppression orders (namely the topics the subject of Tables I, II and III).

83 I do not consider it is appropriate to make an order in non-specific terms without particular passages in the transcript being identified for consideration and possible further order of the court. In the circumstances, I grant leave to the Commissioner to make any further application in respect of the transcript of 8 March 2006.

84 I make the following orders:-

(a) An order that the portions of the transcript of proceedings referred to in Table 1 set out in the Schedule to this judgment not be published.

(b) The contents of documents in Exhibit A behind Tab 15 not be published except for references to “life management” and “stress management” on pp.17 and 18 of the 1988 Pilot Course Documentation and to “Subject No. 28 Life Management” (p.35 of the Course Documentation) and “Subject No. 31 Stress Management” on p.36 of the Course Documentation.

(c) The applicant is to provide to my associate within three days of the delivery of this judgment an edited version of Exhibit C. That document will then be given a discrete exhibit number and become a public exhibit without restriction in the proceedings and placed with the file.

SCHEDULE TO JUDGMENT
TABLE I: Aspects of the role of informers in undercover police operations

Page	Line	Portion of line
7	28	Whole
29	Up to comma
30	Last five words
31	First word
48	57	Last two words
58	Whole
49	1	Last seven words
2-3	Whole
5	All except first two words
6	First five words
9	All except the first word
10	Whole
53	24	Last six words
25	Whole
26	First three words
55	41	Last word
42	First three words
58	26	All except first word
27	Whole
71	12	All three words
117	37	Sixth, seventh, eighth, and ninth words



TABLE II: [XXXXX XXXXX ] police undercover operatives

Page	Line	Portion of line
25	23	After full stop
24	Whole
30-34	Whole
35	First four words
38	16	All except last word
17	Last eight words
18	Whole
19	Up to full stop
23	Last four words
24	First three words
30	All except first two words
31	First three words
35	Last seven words
36	Whole
37	Whole
38	First two words
39	All except first word
40	Up to full stop
44	Sixth, seventh, eighth and tenth words
45	Whole
46	First three words
47	Last word
48-49	Whole
50	First word

TABLE III: Policy on drug taking by undercover police officers


Note: The discussion on pp.115 and 116 of the transcript could be edited in various ways to prevent giving a basis for forming a shrewd idea of the contents of the current policy. The passages proposed here for non-disclosure are an attempt to minimise the necessary editing, but he Commissioner contents (sic) that considerable edited of p.116 is needed. Note that the first line on p.116 is blank. (The reference here to line 3 is a reference to the second line of text, etc., so as to accord with the numbering in the margin.)

Page	Line	Portion of Line
115	57	Second, third and fourth words
116	3	All but first two words (ie., “want to”)
4	Last six words (ie., “this … day”)
5	First word
7	Second to sixth words (inclusive) and last two words
8	First four words and last three words
9	First four words
13	Sixth, seventh and eighth words
14	Firth to eleventh words (inclusive)
23	Third, fourth and fifth words
37	All except first two words
38	All three words
42	Last eight words
43	Whole
44	First and last five words
45-54	Whole
55	Last two words
56	First and last three words
57-58	Whole

**********

05/08/2008 - . - Paragraph(s) 27(c), 63, 64, 65, 66, 67, 69(a), 69(b), 70, Schedule Table II