Commissioner of Police New South Wales v Nationwide News Pty Ltd

[2007] NSWCA 366

Reported Decision: 70 NSWLR 643

New South Wales

Court of Appeal

CITATION:	NEW SOUTH WALES COMMISSIONER OF POLICE v NATIONWIDE NEWS PTY LTD & ANOR [2007] NSWCA 366
HEARING DATE(S):	4 May 2007 (written submissions 4 July 2007)
JUDGMENT DATE:	8 February 2008
JUDGMENT OF:	Mason P at 1; Ipp JA at 84; Basten JA at 85
DECISION:	Orders of Hall J varied, otherwise appeal dismissed with no order as to costs. See para [83](6)
CATCHWORDS:	PROCEDURE – Miscellaneous procedure matters – other matters – inherent jurisdiction of Supreme Court – non-publication order – grounds for non-publication – disclosure not in the public interest – public interest immunity – weighed against proper administration of justice – open justice principle – where information previously disclosed in open court – maintaining integrity of police investigations and safety of officers – whether real risk if non-publication refused
CASES CITED:	Alister v The Queen (1984) 154 CLR 404 Attorney General (NSW) v Mayas (1988) 14 NSWLR 342 Attorney-General (NSW) v Nationwide News Pty Ltd [2007] NSWCCA 307 Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667 Brennan v State of New South Wales [2006] NSWSC 167 Brennan v State of New South Wales [2006] NSWSC 275 House v The King (1936) 55 CLR 499 John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of New South Wales (1991) 26 NSWLR 131 John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344 Paringa Mining & Exploration Co Plc v North Flinders Mines Ltd (1988) 165 CLR 452 R v H [2004] 2 AC 134 Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 Re Applications by Chief Commissioner of Police (2004) 9 VR 275, [2004] VSCA 3 Sankey v Whitlam (1978) 142 CLR 1 Scott v Scott [1913] AC 417 The Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39 The Commonwealth v Northern Land Council (1992) 176 CLR 604 Warren v Coombes (1979) 142 CLR 531 Western Australia v Christie (2005) 30 WAR 514
PARTIES:	NEW SOUTH WALES COMMISSIONER OF POLICE NATIONWIDE NEWS PTY LTD & ANOR
FILE NUMBER(S):	CA 40164/06
COUNSEL:	Appellant: I Temby QC/P Singleton Respondent: T Blackburn SC/T Maltz
SOLICITORS:	Appellant: I V Knight, Crown Solicitor Respondent: Blake Dawson Waldron
LOWER COURT JURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S):	SC 20300/05
LOWER COURT JUDICIAL OFFICER:	Hall J
LOWER COURT DATE OF DECISION:	22 March 2006
LOWER COURT MEDIUM NEUTRAL CITATION:	[2006] NSWSC 167

This is a redacted version of the judgment. The unredacted version has been made available to the parties.

CA 40164/06

MASON P
IPP JA
BASTEN JA

Friday 8 February 2008

NEW SOUTH WALES COMMISSIONER OF POLICE

v

NATIONWIDE NEWS PTY LTD & ANOR

JUDGMENT

1 MASON P: This application for leave to appeal relates to orders made with regard to the non-publication of information previously disclosed in open court in the Supreme Court.

2 Ms Brennan sued the State of New South Wales for damages with respect to psychiatric injury sustained in the course of her employment as a police officer. She was engaged by the Police Force in undercover work between 1978 and 1984. She allegedly suffered a major depressive illness by reason of the highly stressful nature of the work and her lack of training and support.

3 The trial commenced on 6 March 2006. The plaintiff’s claim was settled on the fourth day of the trial, 9 March 2006.

4 At the commencement of the trial Mr P Singleton of counsel appeared on behalf of the Commissioner of Police, the claimant in this Court, seeking orders outlined in a Notice of Motion dated 6 March 2006 and supported by a confidential affidavit of Andrew Scipione, who was then a Deputy Commissioner of Police. The orders sought preserved the anonymity of certain persons by assigning pseudonyms; provided for the limited disclosure (except for the proper conduct of the proceedings) of identified classes of information; and directed that particular types of evidence, submissions or communications in the course of the proceedings would be given or made in closed court.

5 Mr Blackburn SC and Mr Maltz of counsel were subsequently granted leave to appear on behalf of Nationwide News Pty Ltd and John Fairfax Publications Pty Ltd for the purpose of making submissions on the Commissioner’s application.

6 Interim non-publication orders were made that were designed to protect confidentiality pending the determination of the matters raised by the Commissioner.

7 The Commissioner’s application was addressed over the ensuing days.

8 Many issues were resolved, some in favour of suppression, others in favour of non-suppression, of particular names or classes of information. Orders were moulded and re-moulded. This process continued after the main proceedings were settled.

9 Most of the orders are unchallenged.

10 Hall J published reasons on 22 March 2006 (Brennan v State of New South Wales [2006] NSWSC 167) indicating various matters with respect to which he made or refused to make a non-publication order. His Honour declined to make a non-publication order in respect of identified portions of pp115 and 116 of the transcript of the trial, being the pages and passages identified in Table III of the judgment. The passages relate to aspects of what was said to be the policy on drug taking by undercover police officers.

11 The Commissioner seeks leave to challenge this order.

12 The Commissioner also seeks leave to challenge orders made on 11 April 2006 (Brennan v State of New South Wales [2006] NSWSC 275) refusing the permanent suppression of identified portions of the opening address and submissions of counsel relating to another aspect of the work of undercover police operatives. The passages are at pp25 and 38 of the trial transcript and they are identified in Table II of the judgment of 22 March 2006.

13 The identified passages of transcript are hereafter referred to as the “contentious passages”. In many cases they involve single words or small groups of words.

14 Evidence in support of the applications was tendered at first instance and supplemented in this Court. Portions were received without being disclosed to the opponent, this procedure occurring without objection.

15 Chronologically, the first set of contentious passages (at p25 of the trial transcript) are in the opening address of Mr B Stratton QC, senior counsel for the plaintiff in the substantive proceedings. He was outlining his client’s case and the evidence he proposed to adduce. An unfavourable comparison was drawn between conditions during the plaintiff’s period of service and those said to be applicable “now”. Some more specific information along the same lines was provided, but not before the making of an interim non-publication order recorded in the transcript as at lines 26-28.

16 Hall J’s orders of 11 April 2006 referable to portion of p25 commencing at line 30 have the effect of lifting this interim non-publication order with reference to the passages identified.

17 The second set of contentious passages (at p38 of the trial transcript) are in submissions by Mr Singleton, representing the Commissioner, seeking to continue the interim non-publication orders referable to the first set of passages.

18 The third set of contentious passages (at pp115-116 of the trial transcript) are statements by Hall J and Mr Singleton made on 8 March 2006 when discussing whether to close the court or to make orders within the scope of the notice of motion as to non-publication of evidence concerning what may be done “now” or what might be “the current policy” referable to a particular aspect of police work.

19 Each of three passages transcribe what took place in open court, albeit (as regards most of the first sets and all of the second set) during the currency of interim orders for non-publication. There are indications that members of the media were present on at least some of these occasions.

20 As a matter of practice, the transcript of proceedings conducted in the Supreme Court is not accessible as of right by non-parties (see generally Practice Note SC Gen 2).

21 The contentious passages record guarded remarks in open court by experienced practitioners and the Judge referable to matters that the plaintiff expected to prove in her case or submissions on the issue of non-publication. They were made after the Commissioner had notified his intention to move on the Notice of Motion of 6 March 2006. None of the contentious passages identify any document or particular item of evidence, let alone acknowledge its authenticity, origin, relevance or admissibility.

22 This application does not concern the admission of evidence or even the production of documents under the processes of discovery or subpoena.

23 The Court has been informed that, by the time Mr Stratton came to open the case, New South Wales Police had filed or produced material referable to the issues in the trial. It is possible that Mr Stratton’s opening based itself in part upon information thus disclosed. I would nevertheless infer that such material did not include any document over which a claim of public interest immunity had been asserted or upheld.

24 On the other hand, the Notice of Motion of 6 March 2006 flagged that particular issues involving public interest immunity were expected to arise. As indicated, many of them were dealt with at first instance in ways that were satisfactory to all, including the media.

25 The claimant has filed a draft Amended Notice of Appeal raising four grounds of appeal. Grounds 1 and 4 seek to raise questions of general principle. They should be addressed before Grounds 2 and 3 which involve the application of those principles in the particular circumstances.

26 Where an issue of public interest immunity is raised the court will strive to ensure that the Crown has an effective avenue of appeal against an order permitting production. Nevertheless, the orders under appeal in the present case concern the management of procedure at a trial, a task committed to the trial judge in which appellate supervision is constrained by well-established principles (House v The King (1936) 55 CLR 499; Paringa Mining & Exploration Co Plc v North Flinders Mines Ltd (1988) 165 CLR 452 at 457-8).

Ground 1: His Honour erred in holding that the test to be applied required the Judge to balance the public interest in the non-disclosure of certain information in relation to policy and methodology employed by NSW Police against the “open justice principle” .

Ground 4: His Honour erred in not continuing the non-publication orders made with respect to the Table II and Table III material, such continuation being required to prevent, in the public interest, disclosure of confidential government information.

27 In written submissions the claimant argued that Hall J balanced the public interest in non-publication against the “open justice” principle instead of undertaking the balancing exercise prescribed by Sankey v Whitlam (1978) 142 CLR 1. In doing so, the Judge is said to have erred.

28 In Sankey, Gibbs ACJ said (at 38-9):

The general rule is that the court will not order the production of a document, although relevant and otherwise admissible, if it would be injurious to the public interest to disclose it. However the public interest has two aspects which may conflict. These were described by Lord Reid in Conway v Rimmer [[1968] AC at p940] as follows:
“There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done.”
It is in all cases the duty of the court, and not the privilege of the executive government, to decide whether a document will be produced or may be withheld. The court must decide which aspect of the public interest predominates, or in other words whether the public interest which requires the document should not be produced outweighs the public interest that a court of justice in performing its functions should not be denied access to relevant evidence. In some cases, therefore, the court must weigh the one competing aspect of the public interest against the other, and decide where the balance lies. In other cases, however, as Lord Reid said in Conway v Rimmer [[1968] AC at p940], “the nature of the injury which would or might be done to the nation or the public service is of so grave a character that no other interest, public or private, can be allowed to prevail over it”. In such cases once the court has decided that “to order production of the document in evidence would put the interest of the state in jeopardy”, it must decline to order production.

29 This now well established proposition addresses the balancing test required at common law with regard to an application to withhold evidence or other information from production to the court or to a litigant party on the ground of public interest immunity. The interests of justice in the particular case, usually represented by the litigant’s need for material in support of a claim or defence, may require to be balanced against an identified and established aspect of the public interest said to justify non-production.

30 Legitimate claims to confidentiality, including those touching areas attracting public interest immunity, also inform aspects of court procedure. Courts have powers necessary to ensure that their procedures, including procedures normally conducted openly, do not destroy the very interests and rights that are at stake in the litigation or are affected by its processes.

31 The principles are well known and the locus classicus is the speech of Viscount Haldane LC in Scott v Scott [1913] AC 417 at 435-438. The considerations that support Scott can authorise both in camera and non-publication orders (Attorney General (NSW) v Mayas (1988) 14 NSWLR 342 at 345).

32 The Supreme Court has inherent jurisdiction to make appropriate orders whenever it is necessary to do so to secure the proper administration of justice. If the Court could not act to suppress public dissemination of certain matters, then litigants would be deterred from bringing their disputes to court and both litigants and third parties would be discouraged from complying with subpoenas and discovery processes which themselves are vital to the proper functioning of justice.

33 No party to these proceedings disputes that public interest immunity considerations may lead to an order for a closed court or some other form of suppression. Nor is it suggested that Hall J erred in his identification of the integrity of police investigations and the safety of persons involved with them as matters capable of attracting a claim for public interest immunity that could justify the withholding of documentary or oral evidence.

34 The claimant’s arguments as to principle are narrower, involving the relevance of public interest immunity to the making of orders for the non-publication of information already conveyed in open court. The claimant submits, in effect, that if the information relates to evidence yet to be adduced, the adduction of which could itself be suppressed because of the principles of public interest immunity, then the information may be suppressed (unless it is futile to do so) notwithstanding the force of the open justice principle.

35 The opponents rightly contend that claims to public interest immunity require close judicial scrutiny. They appear to accept that the integrity of police investigations and the safety of persons involved with them are topics capable of attracting the immunity (as in my view they clearly are: see eg Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667; R v H [2004] 2 AC 134; Western Australia v Christie (2005) 30 WAR 514 at 522-3).

36 Citing the remarks of Spigelman CJ in John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344 at 353[19], the opponents contend that what they describe as “exceptions” to the open justice principle are finite in number, the principal ones being those protective of (a) the identity of police informers; (b) a witness who might be physically harmed; (c) blackmail victims; (d) children or mentally ill persons with respect to whom a court is charged with responsibility; and (e) trade secrets.

37 I am aware of no authority justifying any closed list of situations or any restricted application of the principles of public interest immunity when they bear upon decisions referable to the closure of a court or the making of a non-publication order. If the disclosure of any information can be demonstrated to be harmful to the public interest, properly understood, then a court’s power to frame a protective order otherwise falling within its jurisdiction will be engaged (see The Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39 at 51-2).

38 In any event, the opponents’ suggested list of “exceptions” deriving from public interest immunity considerations is itself too narrow in light of the cases cited at [35].

39 In John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of New South Wales (1991) 26 NSWLR 131 this Court upheld the power of a Local Court magistrate to make a pseudonym order protecting the identity of a blackmail victim. The leading judgment was given by Mahoney JA (which whom Hope AJA agreed). His Honour referred (at 161) with approval to the remarks by McHugh JA in John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476 as to the implied power of even an inferior court to prohibit the publication of evidence if this is really necessary to secure the proper administration of justice in proceedings before it. Mahoney JA continued (at 161):

This leads to the consideration of what is meant by “necessary to secure the proper administration of justice” in this context. The phrase does not mean that if the relevant order is not made, the proceedings will not be able to continue. Plainly they can. If the name of an informer is not hidden under a pseudonym, the proceeding will go on: at least, the instant proceeding will. And if the name of a security officer is revealed, the administration of justice or of the country will not collapse. The basis of the implication is that if the kind of order proposed is not made, the result will be – or at least assumed to be – that particular consequences will flow, that those consequences are unacceptable, and that therefore the power to make orders which will prevent them is to be implied as necessary to the proper function of the court. The kinds of consequences that, in this sense, will be seen as unacceptable may be gauged by those involved in the cases in which statutory courts have been accepted as having restrictive powers. Thus, there will be hardship on the informer of the security officer or the blackmail victim; the future supply of information from such persons will end or will be impeded; and it will be more difficult to obtain from such persons the evidence necessary to bring offenders before the courts and deal with them. It is not necessary to attempt to state exhaustively the considerations relevant in this regard: it is to considerations of this kind or of an analogous kind on which the principle stated by McHugh JA is based.

40 I respectfully agree. The public dissemination of information relating to evidence attracting public interest immunity would be an “unacceptable consequence” of the administration of justice in a particular case, if the court were able to prevent it by exercising powers that are part of its armoury and refrained from doing so.

41 If courts declined to exercise available powers in this regard, otherwise than on the principled basis that it would be futile to do so because information is already fully in the public domain, then the administration of justice would itself be harmed.

42 The common law no longer recognises any absolute immunity from disclosure of documents based upon them falling within a particular class. “The claim of public interest immunity must nonetheless be weighed against the competing public interest of the proper administration of justice, which may be impaired by the denial to a court of access to relevant and otherwise admissible evidence” (The Commonwealth v Northern Land Council (1992) 176 CLR 604 at 616 (per Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ)).

43 The Supreme Court’s powers extend to non-publication orders that are necessary for the administration of justice (see generally as to the Supreme Court John Fairfax & Sons Ltd v Police Tribunal of New South Wales at 476-7, John Fairfax Publications Pty Ltd v District Court of New South Wales at 354[29], 356[38]). These powers also embrace orders designed to suppress the further dissemination of information that may already have (to some degree) got into the public domain through having been referred to in open court without there having been an earlier order addressing the confidentiality issues. Naturally, the Court will avoid making orders that are futile.

44 These powers are not confined to situations where there has been a deliberate “blurting out” of information known to be confidential. If it is necessary to act in the interests of justice the powers are available whether or not evidence/information has been disclosed inadvertently, wilfully or in breach of earlier orders.

45 Contrary to the claimant’s submission, Hall J did not overlook these principles or fail to apply them. His Honour was acutely aware of them and he anxiously weighed the evidence placed before him as to the risk of harmful impact that might stem from lifting the interim non-publication orders in relation to the contentious passages.

46 The principal statement of his Honour’s reasons for making the ultimate orders that are subject to appeal was on 22 March 2006 (Brennan v State of New South Wales [2006] NSWSC 167).

47 Hall J recognised the Supreme Court’s inherent jurisdiction to make such orders as may be necessary to secure the proper administration of justice in proceedings ([2006] NSWSC 167 (at [28]). His Honour also recognised the primacy of the open justice principle as discussed in cases such as Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 and John Fairfax Publications Pty Ltd v District Court of New South Wales at 354-357[29]-[41]. A non-publication order should not be made unless it is really necessary to secure the proper administration of justice in the particular proceedings. The correctness of this approach has recently been affirmed by the Court of Criminal Appeal (Attorney-General (NSW) v Nationwide News Pty Ltd [2007] NSWCCA 307). See also Re Applications by Chief Commissioner of Police (2004) 9 VR 275, [2004] VSCA 3 at [38].

48 Hall J ([2006] NSWSC 167 at [51]-[52]) framed the question to be determined as one involving the public interest in the non-disclosure of certain information in relation to specialised investigation methodology employed by police. His Honour said that the open justice principle was to be “balanced against” that interest having 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 was relevant to ongoing or specific future investigations;

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

49 These four classes of material to which the Judge paid particular regard show that, contrary to the claimant’s submission in this Court, the Judge did not view the open justice principle as having determinative weight.

50 The general principles calling to be applied with reference to the Commissioner’s application was stated by his Honour in the following terms ([2006] NSWSC 167 at [53]-[55]):

(53) … 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.

51 His Honour’s references to the open justice principle being “balanced against” matters giving rise to a proper claim of public interest immunity have caused concern to the claimant. Nevertheless, in my view, the Judge’s reference ([2006] NSWSC 167 at [51]) to the open justice principle being “balanced against” the interest for which public interest immunity was asserted, and his observation ([2006] NSWSC 167 at [55]) that “this particular public interest must, however, be properly evaluated in the context of the open justice principle”, involved no more than a proper recognition of the context in which the public interest immunity issue presented itself. That involved a transcript of matters spoken in open court that had not involved any breach of existing orders.

52 The remarks should not be understood as suggesting or establishing that the open justice principle may somehow eclipse or trump matters of public interest immunity. An established basis of public interest immunity will trump the open justice principle, but no more than is really necessary to protect the subject matter of the immunity. If something is already in the public domain then there may be no point in further steps being taken by the court with a view to its suppression.

53 I see no basis for thinking that Hall J ignored these principles in his disposition of the proceedings before him and in the orders he made during and after the trial. On the contrary, his Honour affirmed them in the passages of his judgment of 22 March 2006 which have already been set out.

54 Nothing suggests that his Honour doubted his power to grant appropriate interim or final relief. The orders referable to both the Table II and Table III material were based upon conclusions that the public interest identified by the claimant through his counsel and the affidavits that were read (both open affidavits and confidential affidavits) did not call for the permanent suppression of transcripts of what had previously been said in open court beyond the passages that were permanently suppressed.

55 Nor do I accept the claimant’s submission that the primary judge approached the matter by focussing exclusively on the words in the transcript sought to be suppressed.

56 I do not understand the claimant to submit that the settlement of the substantive proceedings relieved Hall J from the duty of considering whether it was necessary in the relevant sense to make permanent suppression orders with regard to portions of the transcript if their disclosure would have the risk identified. In my opinion, his Honour was obliged to address this matter, at least in a context where a proper contradictor that had previously been involved in the proceedings was advancing tenable submissions as to why interim suppression orders should be lifted before the Court record was filed away in the Court archives.

57 Grounds 1 and 4 therefore fail.

58 The question whether the particular orders were properly made is addressed in the second and third grounds of appeal.

Ground 2: His Honour erred in holding that the Table II material did not contain specific or explicit information regarding NSW Police practice or policy

59 The Table II material consists of portions of the opening address of senior counsel for the plaintiff at pp25 and 38 of the trial transcript, relating to [XXXXX XXXXX X] undercover police operatives.

60 Senior counsel had made statements in open court, albeit subject to interim non-publication orders as regards nearly all that is presently in issue. Those statements were qualified in their specificity and unsourced in any particular document. The debate related to aspects of the case that the plaintiff hoped to establish.

61 Experienced counsel felt it appropriate to go as far as they did in open court so that the scene might be set for the plaintiff in her substantive case and so that the suppression issues being advanced by senior counsel representing the Commissioner might themselves be understood by the Judge. Each barrister was aware of his responsibilities, of the interest that the case had aroused and (I infer) of the presence of the media.

62 The claimant does not suggest that plaintiff’s counsel’s opening address involved any breach of interim suppression orders then in place or any “blurting out” of evidence or information already ruled to be subject to public interest immunity or otherwise inadmissible. It should also be pointed out that (with limited exceptions addressed below) Mr Stratton disclosed nothing about the content of the current practices and/or policies nor any documentary or other source for his remarks regarding the matters presently of concern. Questions of relevance, proof and weight were obviously going to be addressed much later in that trial.

63 Explaining his refusal to make a permanent non-disclosure order with reference to the Table II contentious passages, Hall J said ([2006] NSWSC 167 at [63]-[67]):

(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 ] 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 ] 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 ] 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 X] was that if it were known to those involved in illegal activities that [XXXXX XXXXX XXXXX XXXXX XXXXX XXXX], 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 [XXXXX XXXXX X
XXXXX XXXXX X].

(66) The question of [XXXXX ] 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 XXXXX XXXXX X XXXXX XX], 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.

64 The square brackets in the passages set out above and below were inserted by me. With minor amendments and except for the material in square brackets at [68] that I have inserted, they indicate the passages in the judgment of Hall J which the Commissioner has indicated through the Crown Solicitor that he wishes to continue to be withheld from unrestricted publication. They will appear in a copy of these reasons to be provided to the parties to this appeal subject to orders for non-publication, orders that may themselves be reviewed if any party exercises the liberty that will be reserved to do so. A redacted copy of these reasons excluding the words within the square brackets will be published generally, including publication by placement through the internet on the Supreme Court Website, but not until 48 hours have elapsed.

65 His Honour ([2006] NSWSC 167 at [67]) reserved leave to the Commissioner of Police to place further evidence before the Court with regard to the Table II material on the matter. That leave was exercised on 24 March 2006. Two further affidavits were sworn that day by Deputy Commissioner Scipione, one of them being received by Hall J as a confidential affidavit. The confidential affidavit provided additional reasons for the public interest claims referable to the Table II material. Hall J described it as containing evidence of a nature of an expert opinion as to possible deleterious effects it was contended may arise from any disclosure of the information.

66 There is no substance in the submission that the Judge failed to give the claimant a proper opportunity to advance evidence and submissions as to why a permanent non-publication order should be made or withheld. The claimant was given the opportunity to review the whole transcript to identify all matters over which permanent non-publication orders were sought.

67 His Honour explained his reasons for making his final orders in a judgment dated 11 April 2006 ([2006] NSWSC 275).

68 Hall J correctly recognised the need to distinguish between “mere surmise or speculation as to possible risks [XXXXX XXXXX ] can be said to constitute soundly based opinion as to such risks” ([2006] NSWSC 275 at [9]). His Honour ([2006] NSWSC 275 at [10]) brought into account the fact that police undercover methodology had, not infrequently, been the subject of disclosure in evidence in a number of criminal prosecutions. See also Re Applications by Chief Commissioner of Police (2004) 9 VR 275, [2004] VSCA 3.

69 The judgment of 11 April 2006 stated or re-stated a number of general principles. It was pointed out that the application did not relate to the suppression of evidence, but rather to the suppression of aspects of the opening address of senior counsel for the plaintiff and aspects of submissions made on behalf of the Commissioner of Police in relation to the information in question. “The question is whether or not disclosure of such material would be detrimental or potentially detrimental to undercover operations and to those participating in them” ([2006] NSWSC 275 at [14]).

70 Turning to the specifics, his Honour said:

(21) In applying relevant principle to the issue raised in the present application, the following matters are noted:-

(a) The transcript references sought to be suppressed from publication as identified in Table II (see Schedule to judgment of 22 March 2006 incorporating Table II) do not strictly disclose particular operational techniques or methodologies employed in undercover or controlled operations. They relate to matters of policy and practice concerning [XXXXX XXX XXXXX XXXXX XX]. This is in accordance with paragraph [9] in the “open affidavit” of Mr. Scipione sworn 24 March 2006.

(b) The application relates to a general issue and is not restricted to an existing or future investigation.

(22) In determining whether or not a non-publication order of the kind sought is reasonably necessary such as to outweigh the open justice principle, it is, in my opinion, essential to have regard to whether disclosure of the particular transcript references would reveal information of a kind that would carry with it a real possibility of risk. This would include a risk that disclosure would provide information or material from which a relevant deduction or inference can be made, such, for example, as would permit an operative participating in an undercover or controlled operation to be detected. That question, in turn, would depend in this particular case upon the extent to which the transcript references in Table II can be said to contain specific or explicit information regarding the practice or policy.

(23) I have reviewed the transcript references identified in Table II with a view to determining whether the information contained within them is of a kind referred to in [22] thus requiring suppression by a non-publication order. I have concluded that the information is not of that nature.

(24) The first segment of transcript references in Table II are those contained on p.25 of the transcript between lines 30 to 34 in the opening address of senior counsel for the plaintiff. By reason of the fact that I do not wish to risk disclosure of matters that are contained therein, it is sufficient to say that those segments of transcript contain a reference by senior counsel for the plaintiff to the question [XXXXX XX] in less than absolute or precise or specific terms. It will be seen between lines 30 and 34 that any reference to [XXXXX XX] is qualified and is expressed in other than absolute terms.

(25) In relation to the transcript references at p.38, it is sufficient to say that they do not confirm the existence or content of any current day policy and were carefully framed to avoid conveying any precise relevant information on the question [XXXXX XX].

(26) I do not consider that publication or disclosure of the transcript references referred to in Table II would reveal relevant information on any existing policy or practice concerning [XXX] or, in particular, give rise to a risk of the kind referred to in [22]. I also do not consider that the belief as to the possibility of a risk from disclosure is sufficiently supported by reference to factual material supportive of such a belief .

(27) In summary, the transcript references in Table II are not, in my opinion, in their content at all revealing as to any policy that may have operation or application now or in the future.

(28) It follows that I do not consider that an order should be made as sought in relation to the transcript references identified in Table II to the Schedule set out in the judgment of 22 March 2006. I have come to this conclusion, following close attention to the two affidavits of Deputy Commissioner Scipione sworn 24 March 2006, to the principles referred to above and to the content of the transcript references identified in Table II.
(29) In arriving at this conclusion, I have been mindful of the importance of undercover or controlled operations as an investigative technique and the high level of importance which that technique plays in the investigation of particular classes of criminal activity.

71 My reasons for not accepting the accuracy of speaking about the open justice principle being “outweighed” apply equally to [22] of this extract. But once again I regard this as no more than a slip in expression. The balance of the first sentence in [22] of Hall J’s judgment and the later reasoning as a whole shows that the final orders were not based on any error of principle.

72 The primary judge and this Court have had their attention drawn, in particular, to what is stated in the confidential affidavit of then Deputy Commissioner Scipione sworn 24 March 2006.

73 The claimant has developed his particular submissions referable to the Table II material in para 16 of Submissions filed on 18 May 2007. I have considered those submissions carefully.

74 With certain limited exceptions, I am, however, unpersuaded that the primary judge erred in the manner contended for. I further note that the submissions are to the effect that the “weight” or “significance” of certain matters was or “appears” to have been “discounted”. This suggests an endeavour to skirt around the strictures of House v The King. Be that as it may, I do not accept the specific submissions that Hall J failed to give separate consideration to the reasons advanced for confidentiality or that his Honour erred in the manner suggested referable to paras [24] and [27] of the judgment of 11 April 2006 ([2006] NSWSC 275).

75 The language chosen by his Honour must be examined with recognition that the Judge used general language to explain his reasons lest there might be a further suggestion of “blurting out”.

76 It was necessary and appropriate for his Honour to pay attention to the content of the contentious passages and to consider whether the needs of the administration of justice called for the permanent suppression of those passages in light of information already in the public domain.

77 His Honour ordered that the interim order made in the proceedings by which the Court prohibited the publication of the matter prescribed in Table II of the Schedule to the judgment of Brennan v State of New South Wales [2006] NSWSC 167 was continued until 10.00am on Tuesday 18 April 2006 or, if the Commissioner of Police had by that time applied for leave to appeal against this decision, then until such time as that application was determined and, if leave were granted, the appeal was determined. This is the order referable to the Table II material that is challenged in these proceedings.

78 Based upon the material placed before Hall J and this Court I discern no error in the Judge’s conclusion referable to the Table II material save as indicated in the next paragraph.

79 In my opinion, certain Table II matter disclosed in pp 25 and 38 of the transcript has been shown to be such that, in the public interest identified in the evidence of Deputy Commissioner Scipione, it should be the subject of a continuing non-publication order. I therefore disagree with paras [24] and [27] of his Honour’s conclusions to this limited extent. The material is identified in the orders I propose.

Ground 3: His Honour erred in holding that the Table III material did not contain information the release of which would reveal information of a kind that would carry with it a real possibility of risk to NSW Police undercover operatives or controlled operations

80 Explaining his refusal to make a permanent non-disclosure order with reference to the Table III contentious material, Hall J said ([2006] NSWSC 167 at [68]-[70]:

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:-

[XX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX
XXXXX XXXX;

XX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX
XXXXX XXXX];

(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 X]. 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.

81 In considering the challenge to the conclusions on the Table III material I too have examined the confidential affidavit of 6 March 2006. I have done so with particular reference to the limited scope of the information concerning the relevant policy that is divulged in the contentious passages referred to in Table III. I agree in particular with [70] of Hall J’s reasons ([2006] NSWSC 167).

Disposition

82 Since the opponents have failed in the broader issues they have propounded and the claimant has succeeded to a limited degree based upon material to which the opponents are not privy it seems appropriate that there should be no order as to the costs of the appeal.

83 Accordingly, I would make the following orders:

1. Grant leave to appeal.

2. Direct the appellant to file the amended notice of appeal within 7 days.

3. Vary the orders made by Hall J with reference to the Table II material by making a non-publication order in respect of the following passages of the trial transcript:

Page 25
- Line 23: last seven words,
- Lines 24 to 34: whole, and
- Line 35: the first four words.

Page 38
- Line 16: all except the last word,
- Line 17: last eight words,
- Line 18: whole,
- Line 19: first six words,
- Line 23: last four words,
- Line 24: first three words,
- Line 30: all except first two words,
- Line 31: first three words,
- Line 35: all except first three words,
- Lines 36 and 37: whole,
- Line 38: first two words,
- Line 39: all except first word,
- Line 40: all except last two words,
- Line 44: six, seventh, eighth and tenth words,
- Line 45: whole,
- Line 46: first three words,
- Line 47: last word,
- Lines 48 and 49: whole, and
- Line 50: first word.

4. Otherwise appeal dismissed with no order as to costs.

5. Direct that the interim order made by Hall J on 11 April 2006 continue up to and including 7 March 2008 or such later date as may be ordered in the event of an application for special leave to appeal is made to a Justice of the High Court of Australia.

6. Direct that there be no publication of the unredacted version of this Court’s reasons for judgment.

7. Liberty to apply.

84 IPP JA: I agree with Mason P.

85 BASTEN JA: An application, such as this, for non-publication of evidence given in Court engages an atypical aspect of the judicial function. At one end of a spectrum, the judicial function is concerned with establishing past facts and applying relatively precise rules or principles to those facts to reach a judgment. The present exercise involves the application of ill-defined and imprecise conflicting principles, on the basis of speculation as to future consequences.

86 The underlying principle is one of transparency in the judicial process. That principle itself has a number of facets. As between the parties to litigation, it requires that cases be determined on the basis of evidence adduced in court and argument presented in court, so that each party will know what the other has presented and each will know the totality of the material presented to the judge. Although the decision-making process takes place in private, the results are intended to be transparent through the provision of reasons.

87 The principle of transparency in the administration of justice also operates at the public level. Generally speaking, cases are to be run in open court, allowing the attendance of members of the public who wish to watch and hear the proceedings and with an expectation that the media may publish reports of the proceedings: see, eg, John Fairfax Publications Pty Ltd v District Court (NSW) (2004) 61 NSWLR 344 at [18] (Spigelman CJ).

88 The justification for the principle of transparency in the administration of justice has been widely discussed, both in caselaw and in the legal literature. In short, it may be described as a political mechanism for maintaining public confidence in the administration of justice.

89 Like all broad principles based on public policy, the principle of transparency has its limits. Critically for present purposes, it should not be allowed to operate in a manner which is self-defeating. Thus, it should not operate where the likely consequences are to diminish rather than enhance the operation of the judicial process and public confidence therein. The point at which that limit is reached in a particular case is beyond precise definition and is a matter of evaluative judgment. Generally speaking, an appellate court will intervene in such a case only where the exercise of discretion on the part of the trial judge has been shown to have miscarried. However, the proper administration of justice is a matter which is likely to exceed the interests of the parties in particular litigation and is a matter which can as well be determined by an appellate court as a primary judge: see Warren v Coombes (1979) 142 CLR 531, 551. It depends on an evaluation of possible and often indirect consequences, usually having no immediate impact on the outcome of the particular litigation.

90 What is of particular concern in such a case is that an assessment is required of consequential effects that are not merely speculative, but largely unmeasurable. For example, whether a non-publication order will alleviate the risk to an informer’s physical safety requires some understanding of police procedures, which may be the subject of evidence. On the other hand, non-publication orders may generally run the risk of a diminution in public confidence in the open administration of justice. Often the best that can be said in the latter respect is that the consequences of making a non-publication order on public confidence is likely to depend upon the perceived justification for the order in the circumstances in which it is made. An order will often be viewed in the context of past orders of a similar kind and with an eye to its precedential effect, trends being perceived to be as important as an individual order.

91 For this reason, a relevant consideration is whether the proposed order is in keeping with established authority or whether it involves an apparent extension of the exceptions to the principle of transparency. In this sense, it is appropriate to describe the exceptions as limited and to scrutinize strictly any attempt to expand the exceptions beyond those which are established. Nevertheless, each case should be approached on its merits and, especially where new circumstances have given rise to new problems, a court cannot be bound to assess the effects on the administration of justice by reference to the scope of an exception articulated in different circumstances.

92 Of greater importance is the material upon which the application for a non-publication order is to be made. As in relation to claims for public interest immunity from production of evidence, in the past an objection taken by a minister of state to the production of material, so long as it was in proper form, was treated as determinative of the application of the principle in the particular case. That, however, is not the law in Australia: see Sankey v Whitlam (1978) 142 CLR 1 and Alister v The Queen (1984) 154 CLR 404 at 412-413 (Gibbs CJ). It is now expected that a court may, if concerned as to the appropriate assessment of the consequences of disclosure, assess for itself the evidence of a minister or senior government official who attests to those consequences. That was a matter of some importance in the present case, where the Commissioner relied upon affidavits of the Deputy Commissioner (themselves treated as confidential) to support his claim. The affidavits relied upon provided some detail in relation to the justification for non-disclosure of particular kinds of evidence. However, in relation to the critical issues extending beyond the orders proposed by the President, the justification proposed in the evidence of the Deputy Commissioner was slender and far from persuasive.

93 In these circumstances, I agree with the orders proposed by the President and subject to the further considerations noted above, with his Honour’s reasons.

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