Commissioner of Police v ATH - [2012] QSC 344

SUPREME COURT OF QUEENSLAND

CITATION:

Commissioner of Police v ATH [2012] QSC 344

PARTIES:

COMMISSIONER OF POLICE

(applicant)

v

ATH

(respondent)

FILE NO/S:

Indictment Nos XXX/11 and XXX/11

DIVISION:

Trial

PROCEEDING:

Application

DELIVERED ON:

November 2012

DELIVERED AT:

Brisbane

HEARING DATE:

8 November 2012

JUDGE:

Jackson J

ORDER:

1.    that the applicant produce the documents identified in paragraphs 9 to 13 of the affidavit of John Lawrence Pointing filed on 17 September 2012 (“the affidavit”) to the extent that they record conversations between the applicant and police officers by producing redacted copies (or an edited copy of any relevant tape) of those documents.

2.    that the applicant produce any letter of comfort referred to in paragraph 3 of the subpoena issued on 20 July 2012 to the applicant.

3.    that the subpoena otherwise be narrowed by excluding the documents identified in paragraphs 9 to 15 of the affidavit.

4. that pursuant to s 121 of the Drugs Misuse Act 1986 publication of the application, the affidavit, the outlines of argument and the oral hearing of the application is prohibited until further order.

5.    that the application, the affidavit and the outlines of argument be placed on the file in a sealed envelope marked “not to be opened without the order of a Judge”.

CRIMINAL LAW AND PROCEDURE – PROCEDURE – SUBPOENAS – APPLICATION TO NARROW SCOPE – where defendant who acted as informer later charged for related drug offences – where defendant issued subpoena to applicant for records – where applicant argued that cannot be compelled to disclose documents relating to informer – where applicant further argued that disclosure would prejudice effectiveness of methodologies – where parties agreed that latter difficulty could be avoided by appropriate redactions – whether information about informant confidential as between informer and police – whether production could be compelled

STATUTES – ACTS OF PARLIAMENT — INTERPRETATION – OPERATION AND EFFECT OF STATUTORY PROVISIONS – where provision protected police officer from being compelled to disclose information “made or received by the police officer in the police officer’s official capacity or containing confidential information” – whether literal interpretation produces absurd result – whether “or” should be read as “and”

Acts Interpretation Act 1954 (Qld), s 14A
Criminal Code, s 590AB
Criminal Practice Rules 1999 (Qld), r 33(1)(b)
Drugs Misuse Act 1986 (Qld), ss 119, 120, 121

Police Powers and Responsibilities Act 2000 (Qld), s 803

Adams v Lambert (2006) 228 CLR 409, considered
Australian Crime Commission v Stoddart (2011) 244 CLR 554, cited
Commissioner of the Police Service v Cornack [2004] 1 Qd R 627, considered
Potter v Minahan (1908) 7 CLR 277, cited
Project Blue Sky Inc v Australian Broadcasting Inc (1998) 194 CLR 355, considered
R v Demir [1990] 2 Qd R 433, considered
R v Spizziri [2001] 2 Qd R 686, considered

Ridgeway v R (1995) 184 CLR 19, cited

COUNSEL:

B Kennedy for the applicant
A O’Brien for the respondent

D Nardone for the Crown

SOLICITORS:

Queensland…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Commissioner of Police v ATH

Details

AGLC: Commissioner of Police v ATH [2012] QSC 344
Case: [2012] QSC 344
Decision Date: 8 November 2012

CaseChat Overview and Summary

In this matter, the Commissioner of Police sought an order to narrow the scope of a subpoena issued to them by the defendant, ATH. ATH, who had acted as an informer, was subsequently charged with drug offences related to the matters covered by the subpoena. The Commissioner argued that they were not required to produce documents relating to the informer and that disclosure would prejudice the effectiveness of their methodologies. The Commissioner further argued that the information about the informer was confidential between the informer and the police, and therefore, they could not be compelled to disclose it.

The court was required to decide whether the information about the informant was confidential as between the informer and the police, and whether the Commissioner could be compelled to disclose the documents. The court also needed to interpret the relevant statutory provision to determine whether the word “or” should be read as “and” in the context of the provision protecting police officers from being compelled to disclose information “made or received by the police officer in the police officer’s official capacity or containing confidential information”.

The court held that the information about the informer was not confidential as between the informer and the police, and therefore, the Commissioner could be compelled to disclose the documents. The court further held that the word “or” should be read as “and” in the relevant statutory provision. Consequently, the court ordered the Commissioner to produce the documents identified in the affidavit to the extent that they record conversations between the Commissioner and police officers by producing redacted copies of those documents. The court also ordered that the application, the affidavit and the outlines of argument be placed on the file in a sealed envelope marked “not to be opened without the order of a Judge”. Additionally, the court prohibited the publication of the application, the affidavit, the outlines of argument and the oral hearing of the application until further order.

Orders

Orders of the court

1. that the applicant produce the documents identified in paragraphs 9 to 13 of the affidavit of John Lawrence Pointing filed on 17 September 2012 (“the affidavit”) to the extent that they record conversations between the applicant and police officers by producing redacted copies (or an edited copy of any relevant tape) of those documents.

2. that the applicant produce any letter of comfort referred to in paragraph 3 of the subpoena issued on 20 July 2012 to the applicant.

3. that the subpoena otherwise be narrowed by excluding the documents identified in paragraphs 9 to 15 of the affidavit.

4. that pursuant to s 121 of the Drugs Misuse Act 1986 publication of the application, the affidavit, the outlines of argument and the oral hearing of the application is prohibited until further order.

5. that the application, the affidavit and the outlines of argument be placed on the file in a sealed envelope marked “not to be opened without the order of a Judge”.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Commissioner of Police v ATH [2012] QSC 344
PARTIES:	COMMISSIONER OF POLICE (applicant) v ATH (respondent)
FILE NO/S:	Indictment Nos XXX/11 and XXX/11
DIVISION:	Trial
PROCEEDING:	Application
DELIVERED ON:	November 2012
DELIVERED AT:	Brisbane
HEARING DATE:	8 November 2012
JUDGE:	Jackson J
ORDER:	1. that the applicant produce the documents identified in paragraphs 9 to 13 of the affidavit of John Lawrence Pointing filed on 17 September 2012 (“the affidavit”) to the extent that they record conversations between the applicant and police officers by producing redacted copies (or an edited copy of any relevant tape) of those documents. 2. that the applicant produce any letter of comfort referred to in paragraph 3 of the subpoena issued on 20 July 2012 to the applicant. 3. that the subpoena otherwise be narrowed by excluding the documents identified in paragraphs 9 to 15 of the affidavit. 4. that pursuant to s 121 of the Drugs Misuse Act 1986 publication of the application, the affidavit, the outlines of argument and the oral hearing of the application is prohibited until further order. 5. that the application, the affidavit and the outlines of argument be placed on the file in a sealed envelope marked “not to be opened without the order of a Judge”.
CRIMINAL LAW AND PROCEDURE – PROCEDURE – SUBPOENAS – APPLICATION TO NARROW SCOPE – where defendant who acted as informer later charged for related drug offences – where defendant issued subpoena to applicant for records – where applicant argued that cannot be compelled to disclose documents relating to informer – where applicant further argued that disclosure would prejudice effectiveness of methodologies – where parties agreed that latter difficulty could be avoided by appropriate redactions – whether information about informant confidential as between informer and police – whether production could be compelled STATUTES – ACTS OF PARLIAMENT — INTERPRETATION – OPERATION AND EFFECT OF STATUTORY PROVISIONS – where provision protected police officer from being compelled to disclose information “made or received by the police officer in the police officer’s official capacity or containing confidential information” – whether literal interpretation produces absurd result – whether “or” should be read as “and” Acts Interpretation Act 1954 (Qld), s 14A Criminal Code, s 590AB Criminal Practice Rules 1999 (Qld), r 33(1)(b) Drugs Misuse Act 1986 (Qld), ss 119, 120, 121 Police Powers and Responsibilities Act 2000 (Qld), s 803 Adams v Lambert (2006) 228 CLR 409, considered Australian Crime Commission v Stoddart (2011) 244 CLR 554, cited Commissioner of the Police Service v Cornack [2004] 1 Qd R 627, considered Potter v Minahan (1908) 7 CLR 277, cited Project Blue Sky Inc v Australian Broadcasting Inc (1998) 194 CLR 355, considered R v Demir [1990] 2 Qd R 433, considered R v Spizziri [2001] 2 Qd R 686, considered Ridgeway v R (1995) 184 CLR 19, cited
COUNSEL:	B Kennedy for the applicant A O’Brien for the respondent D Nardone for the Crown
SOLICITORS:	Queensland…