Chief Commissioner of Police v Crupi & Anor

[2024] HCATrans 54

[2024] HCATrans 054

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M83 of 2023

B e t w e e n -

CHIEF COMMISSIONER OF POLICE

Applicant

and

VINCENZO CRUPI

First Respondent

DIRECTOR OF PUBLIC PROSECUTIONS

Second Respondent

BEECH‑JONES J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE BY VIDEO CONNECTION

ON MONDAY, 19 AUGUST 2024, AT 9.58 AM

Copyright in the High Court of Australia

HIS HONOUR:   In accordance with the protocol for remote hearings, I will announce the appearances for the parties.

MS S.J. MAHARAJ, KC appears for the applicant.  (instructed by Victorian Government Solicitor’s Office)

MS H.L. CANHAM appears as amicus curiae.

HIS HONOUR:   I note that there are submitting appearances, at least for this application, filed by the other respondents.  Ms Maharaj, I understand it is your application for the extension of the suppression order to include some of the material that has been recently filed.  Is that correct?

MS MAHARAJ:   Yes, your Honour, I move on the application filed on 14 August and with the affidavit in support filed on the same date.

HIS HONOUR:   Thank you, I have that material.  Ms Canham, do you have any objection to either the material or the form of the order?

MS CANHAM:   We do not.

HIS HONOUR:   All right, there is just two things, then, I wish to raise.  The first is purely a matter of form.  I do not know if either of you have the original form of the order taken out on 8 April.

MS CANHAM:   I do.

HIS HONOUR:   If you have that, you might see it is really – perhaps being over‑pedantic, but in the third‑last line the way it is formatted is that one could read it as though the reference to the grounds is only to 1(c), rather than 1(a) or (b), and so, subject to anything either of you wish to say, I am planning to make the monumentous variation of substituting a semicolon for the comma after the words “respondents”.  I gather that is not going to be any problem.

MS MAHARAJ:   We are content with that, your Honour.

HIS HONOUR:   Yes, and same for you Ms Canham?

MS CANHAM:   Yes.

HIS HONOUR:   The second matter is a little bit more substantive.  Can I go to Ms Maharaj’s application, and it is in relation to the submissions referred to in (i), (j) and (k).  Having now had the opportunity to read the parties’ supplementary submissions, it occurred to me that there may be parts of those submissions that do not infringe the Commissioner’s concern but which may be of some assistance to the issues.  I will just give you an indication of what I had in mind.  For the submissions filed on 15 June, I was planning to carve out paragraph 19 of those.  I do not know if you have that paragraph.

MS MAHARAJ:   If you could just bear with me a moment, your Honour.

MS CANHAM:   Yes.

MS MAHARAJ:   Yes, your Honour.

HIS HONOUR:   Do you have objection to that carve‑out, Ms Maharaj?

MS MAHARAJ:   No, I do not.

HIS HONOUR:   Ms Canham?

MS CANHAM:   Nor do I.

HIS HONOUR:   In the next one, the submissions of the amicus filed 9 November, I was proposing to carve out paragraphs 9(a) and (c), 45 and 46.  Does that cause any difficulty?  Or is the reference to two other pseudonyms the problem?

MS CANHAM:   I will let Ms Maharaj speak.

MS MAHARAJ:   Your Honour, with the ‑ ‑ ‑

HIS HONOUR:   How about the first sentence of 9(a)?

MS MAHARAJ:   No problems with that, your Honour.

HIS HONOUR:   Okay, and the first sentence of 9(c)?

MS MAHARAJ:   No problems with that, your Honour.

HIS HONOUR:   All right, and then paragraphs 45 and 46.

MS MAHARAJ:   No problems with 45, and I see no problems with 46.  I will just take final instructions.

HIS HONOUR:   Yes.  Ms Maharaj?

MS MAHARAJ:   Your Honour, we are fine with your redactions.  The concern we had in relation to the two pseudonyms, your Honour has taken care of that, in any event.

HIS HONOUR:   Ms Canham, do you have difficulty with those?

MS CANHAM:   The only thing I might flag, but it is a matter for Ms Maharaj, is whether the numeral that is included in those paragraphs raises an issue.

HIS HONOUR:   You mean in ‑ ‑ ‑

MS MAHARAJ:   I am not following, your Honour.  Is that the pseudonym I am asked, with respect?

MS CANHAM:   Yes.  In paragraphs 45 and 46, the fullness of the reference to the pseudonym as opposed to just the first two letters.  The fact that there is the numeral after the first two letters ‑ ‑ ‑

HIS HONOUR:   I see.

MS CANHAM:   ‑ ‑ ‑ tells you something about ‑ ‑ ‑

MS MAHARAJ:   Yes, we can respectfully ask your Honour to redact that.

HIS HONOUR:   All right.  I see, there is a concern about that.  That is important to note.  Yes, that will be okay.  Now I understand.  All right, I will deal with that in the form of order I will read out.  Then, in the Commissioner’s submissions in reply before the primary judge, paragraph 7.

MS MAHARAJ:   No problems, your Honour, with paragraph 7, with the exception of the numbers that appear after each of the pseudonyms.

HIS HONOUR:   In my version of paragraph 7 of the Commissioner’s submission in reply before the primary judge there are no pseudonyms.

MS CANHAM:   There is some duplicative numbering in that document.

HIS HONOUR:   “Second appearing”.

MS MAHARAJ:   No problems with the one “second appearing”, your Honour.

HIS HONOUR:   Ms Canham?

MS CANHAM:   No difficulties with that paragraph.

HIS HONOUR:   All right.

MS CANHAM:   There has been reference to the earlier 7.1, but there may be some difficulties with that subparagraph for the reasons that have already been canvassed.

HIS HONOUR:   Yes, carving that up may become unwieldy when I think – I will come back, and I will read out the form of the order shortly.  I just want to inquire about these.  I notice that the first respondent has filed some submissions.  Do either of you know whether the first respondent is proposing to appear tomorrow?

MS CANHAM:   They are.

HIS HONOUR:   They are.

MS CANHAM:   That is my understanding, yes.

HIS HONOUR:   Subject to either of you, I was proposing to have the Court send to the parties an index to the materials bundle that the Court has prepared.  Not the contents because it becomes too unwieldy, but at least the index, so as to enable the counsel to have some idea of the way of orientating the members of the Bench as to where things are.  It cannot be perfect, but it seems to be probably the best approach.  It will simply adopt the titles of the various documents that have been filed.  Neither of you have any objection to that?  That would therefore include counsel for the first respondent, too, I think.

MS MAHARAJ:   Yes, thank you.

HIS HONOUR:   Even though they will not have access to all of it.

MS MAHARAJ:   Yes, your Honour.  That would be useful, thank you.

HIS HONOUR: Before the Court is an application to vary an earlier suppression order that has been made in this application under section 77RE of the Judiciary Act 1903.  The grounds for the earlier orders were that the suppression order was necessary to prevent prejudice, the proper administration of justice and to protect the safety of any person.

Without traversing the details of those concerns, it suffices to state that they relate to a concern about the disclosure of the material and the identification of an informer.  The protection of the identity of an informer so as to avoid harm to them and to prevent further information being provided to investigative bodies under a confidential basis is an interest long‑recognised by the law.

Today’s application was notified in accordance with the Court’s practice note in relation to such applications.  It simply involves an application to extend the previous order so as to include some supplementary material which, if disclosed, would have the tendency to have the same effect as the material the subject of the earlier order.  Subject to some modifications that I have discussed with counsel, it is necessary to make that order and I will do so.

I will shortly read out the terms of the order.  In terms of finalising it, I would invite counsel to provide a final copy of the order as soon as possible today so that all of the order can be settled and made available to the Bench of Judges constituted to hear the application tomorrow.

The form of that order is as follows:

1.Order 1 of the orders made by the Honourable Justice Beech‑Jones on 8 April 2024 as varied on 13 May 2024 is further varied by the substitution of a semicolon for a comma after the word “respondents” in the third‑last line of the order made on 8 April 2024 and so as to include the following material:

(h)transcript of public interest immunity hearing dated 16 November 2022;

(i)confidential submissions filed on behalf of the Chief Commissioner of Police dated 15 June 2022, save for paragraph 19;

(j)confidential submissions filed on behalf of the amicus curiae dated 9 November 2022, save for the first sentence of paragraph 9(a) other than the reference to the pseudonym, save for the first sentence of paragraph 9(c) other than the reference to the pseudonym, save for paragraph 45, and save for paragraph 46;

(k)confidential submissions in reply filed on behalf of the Chief Commissioner of Police dated 14 November 2022, save for the paragraph 7, second appearing; and

(l)the exhibits to the open affidavit of Sara Anne Morse dated 14 August 2024.

As was indicated, I would be grateful if a typed version of that order can be provided, and I will settle it as soon as possible.  Is there anything further?

MS MAHARAJ:   No, your Honour.

HIS HONOUR:   Ms Canham?

MS CANHAM:   Nothing further, thank you.

HIS HONOUR:   Thank you very much.  I thank both counsel and the hearing will now conclude.

MS MAHARAJ:   May it please the Court.

MS CANHAM:   May it please the Court.

AT 10.14 AM THE MATTER WAS ADJOURNED