Commissioner of NSW Police v Alameddine

[2022] NSWSC 1596

Supreme Court

New South Wales

Medium Neutral Citation:

Commissioner of NSW Police v Alameddine [2022] NSWSC 1596

Hearing dates:

21 November 2022

Date of orders:

21 November 2022

Decision date:

21 November 2022

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

See paragraph 20 of Judgment.

Catchwords:

EVIDENCE – privileges – public interest immunity – objections to documents sought under Notice to Produce – objections upheld

Legislation Cited:

Crimes (Serious Crime Prevention Orders) Act 2016 (NSW), ss 5, 6, 13

Evidence Act 1995 (NSW), ss 130, 131A

Surveillance Devices Act 2007 (NSW), s 42

Category:

Procedural rulings

Parties:

Commissioner of NSW Police (Applicant)
Mohamad Alameddine (Respondent)

Representation:

Counsel:
R. Lee (Applicant)
P. Lange (Respondent)

Solicitors:
Crown Solicitors Office (Applicant)
One Group Legal (Respondent)

File Number(s):

2022/76907

Publication restriction:

Nil

Judgment

1. By summons filed on or about 17 March 2022 the Commissioner of Police of the New South Wales Police Force whom I will simply refer to as "The Commissioner" seeks an order against the defendant, Mohamad Alameddine, under s 5 of the Crimes (Serious Crime Prevention Orders) Act2016 (NSW) (“the Act”). I will refer to the defendant as Mr Alameddine.

2. It is unnecessary for me to detail the grounds upon which that relief is sought. It is sufficient for me to refer to s 5 of the legislation which conditions the exercise of the Court's power under the Act and specifically paragraph (c) of subs (1) which requires the Court to be satisfied assuming the other conditions are met:

“that there are reasonable grounds to believe that the making of the order would protect the public by preventing, restricting or disrupting involvement by the person in serious crime related activities.”

3. An order, if made, having regard to the terms of s 6 of the Act and the relief sought in the summons would involve a very serious curtailment of Mr Alameddine's general right to be at liberty, whether or not the Commissioner could prove he had committed any serious offence. Proof of the commission of a serious offence is not of itself an essential condition of the making of an order.

4. The matter is still in the interlocutory stage of its preparation. I remind myself by reference to the terms of s 13 of the Act that the proceedings are not criminal proceedings, rather the rules of evidence applicable in civil proceedings apply and those applicable only in criminal proceedings do not. Nonetheless, they are civil proceedings of a particular type.

5. The present dispute between the parties relates to the production of documents. The defendant has served a notice to produce on the Commissioner dated 14 August 2022 seeking the production to the Court of nine categories of document. I am informed by counsel that through a process of negotiation and case management by her Honour Adamson J the scope of the notice to produce has been modified and reduced.

6. The particular dispute before me relates to paragraph 8 of the notice to produce which is in the following terms:

"A copy of the reports created pursuant to s 44 of the Surveillance Devices Act2007 in relation to any warrant issued in relation to any investigation involving the defendant during the period 29 September 2014 and 1 August 2022.”

7. The Commissioner objects to the production of those reports in full. I should interpolate that it is obvious from that comment there are such documents in existence in the possession of the Commissioner. However, on the basis of the evidence before me, both open evidence and confidential evidence, other than in respect of one document covered by the notice to produce, the Commissioner objects to the production in full but accepts that the documents could be produced after particular redactions are made to them, which are the subject of a confidential affidavit read in evidence without objection.

8. It might be said that the categories of objection raised by the Commissioner concern the identity of informers on the one hand and matters relating to police operations in terms of methodology on the other. Specifically in relation to details of surveillance device technology, methods of installation, use or retrieval of surveillance devices, those matters are covered by the provisions of s 42 of the Surveillance Devices Act2007 (NSW). To the extent to which the Commissioner's objection to produce is not supported by s 42, reliance is placed upon the principles of public interest immunity by reference to ss 130 and 131A of the Evidence Act1995 (NSW).

9. I have had the benefit of submissions of counsel. In particular I have received written submissions of Mr Lee of counsel for the Commissioner, both in an open format, which submissions have been served on Mr Lange of counsel, who appears for Mr Alameddine, and also in a confidential format, in accordance with the nature of the power I am required to exercise. These latter submissions have not been served. Mr Lange does not object to me receiving them.

10. I fully appreciate that whether I am exercising the power conferred by s 42(2) Surveillance Devices Act or under s 130 Evidence Act, I am required to undertake a balancing exercise in accordance with the terms of the applicable statute. So far as s 42 of the Surveillance Devices Act is concerned, it permits an objection to be raised by the Commissioner in respect of information contained in documents that could reasonably be expected to reveal details of the surveillance device technology or methods of installation, use or retrieval of surveillance devices. The Court has a discretion conferred by subs (2) if satisfied that the grounds of objection are made out whether or not to require disclosure in any event. That discretion is not entirely at large and is to be exercised, in my judgment, in accordance with the terms of subs (3), as follows:

In determining whether or not to make an order under subsection (2), the person conducting or presiding over the proceeding must take into account whether disclosure of the information -

(a)   is necessary for the fair trial of the defendant or to ensure procedural fairness in any disciplinary or civil proceeding, or

(b)   is in the public interest.

11. I am certainly satisfied so far as the contents of the confidential affidavit and confidential exhibit are concerned that the parts of the documents the production of which is objected to by the Commissioner could reasonably be expected to reveal details of the surveillance device technology or methods of installation, use or retrieval of surveillance devices. So far as the details of technology are concerned, not all of that information is in the public domain. Not all of that information is well known even to lawyers, if I may say so, with respect to Mr Lange, who have a large and successful criminal practice. It would seem to me that so far as the question is whether disclosure of that sort of information is necessary to ensure procedural fairness in these civil proceedings, or is more generally in the public interest, the answer is no.

12. The legitimate forensic purpose identified by Mr Lange for requiring the production of the documents in paragraph 8 is related to the information that might have been obtained by the Commissioner by use of surveillance technology and, in particular, what it might say about Mr Alameddine's putative involvement, or not, in serious criminal related activities over the period. With respect, identifying the technology and how it operates is a subsidiary consideration and that type of information is not necessary to ensure procedural fairness in the proceedings. I emphasise the use of the verb "to ensure" in juxtaposition to the adjective "necessary" paragraph (a) of ss (3) of s 42. What is required is satisfaction that it is necessary for a fair trial, in a case of criminal proceedings, or necessary to ensure procedural fairness in the case of civil proceedings before the discretion is to be exercised in favour of disclosure. I acknowledge if it is otherwise in the public interest the strictures of paragraph (a) of subs (3) need not necessarily be satisfied.

13. It would seem to me that disclosure of the nature of the technology involved is not in any way necessary to ensure procedural fairness in the proceedings. Given that it is well recognised in the authorities that Mr Lee has referred to which are unnecessary for me to set out in this judgment that it is, generally speaking, in the public interest for details of police methods of investigation to be kept confidential except when otherwise likely to be matters of general knowledge.

14. I am not satisfied that the public interest generally requires disclosure of the surveillance device technology actually employed. Moreover, I am well satisfied that some of the information goes to methods of installation, use or retrieval of devices. Once again these are matters of police operations which are not necessary to be disclosed in order to ensure procedural fairness, having regard to the somewhat limited legitimate forensic purpose identified by Mr Lange in terms of the notice to produce.

15. I am also satisfied, however, for the reasons set out in the confidential affidavit that there is a crossover between disclosure of that information, so far as it is contained in the documents the subject of the notice to produce, and public interest immunity considerations; particularly as might concern the public interest in the need to safeguard the personal integrity of informers and other persons who cooperate with police in the course of their investigations into putative serious crime. I am not satisfied that it is necessary to disclose those matters to ensure procedural fairness and nor am I satisfied that disclosure is in the public interest for those general reasons I have explained.

16. There is a crossover of grounds for objection to production in respect of some of the material which is not unusual. I am well satisfied, so far as s 130 of the Evidence Act is concerned, that the public interest favours non-disclosure. In this regard I am persuaded that disclosure of the information, or the parts of the documents, objected to would prejudice the investigation of possible offending and would tend to disclose or enable the defendant to ascertain the existence or identity of a confidential source of information relating to the enforcement and administration of the laws of this State.

17. In coming to that conclusion, I have had regard to the matters set out in s 130(5) Evidence Act. I am not persuaded that the information objected to is of high importance to the proceedings. At the same time there are significant public interests in non-disclosure as I have said. I have borne in mind the nature of the cause of action upon which the Commissioner relies and, as I have said, it is a cause of action which, if successfully pursued in this Court, would involve significant curtailment of the liberty of Mr Alameddine. Accordingly, the nature of the subject matter of the proceedings is of some importance and involves significant implications for the liberty of the subject, generally, as well as the liberty of Mr Alameddine in particular.

18. I am not satisfied that the evidence can be published other than as proposed by the Commissioner by redaction of the matters objected to. In this regard I am satisfied that the likely effect of adducing evidence would be to prejudice or put in jeopardy, in particular, the safety of informers and other persons who cooperate with police in their investigations. I am not satisfied there are any means available to limit that possible prejudice other than by withholding the information. By their very nature and having regard to the Surveillance Devices Act there has been no prior publication of these documents or the information they contain other than for the strictly limited and confidential purposes of the operation of that Act itself.

19. In all of the circumstances and for those reasons I am satisfied that I should uphold the objections made by the Commissioner to the production of those parts of the documents covered by paragraph 8 of the notice to produce contained within confidential exhibit AJ-1.

20. My orders are:

1. Uphold the objections made by the Commissioner to the production of those parts of the documents covered by paragraph 8 by reference to the redactions proposed in Confidential Exhibit AV-1.

2. Direct that with the exception of the document reproduced at pages 30 to 32 of Confidential Exhibit AJ-1, which is not to be produced at all, the documents forming that exhibit are to be produced in their redacted form as identified in the confidential affidavit within 7 days of today’s date.

3. The confidential affidavit, exhibit and submission may be returned to the Crown Solicitor upon her undertaking to preserve them and to re-produce them to the Court as may be directed.

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Decision last updated: 22 November 2022