Commissioner of Police v Cole (No. 2)

[2018] NSWSC 561

Supreme Court

New South Wales

Medium Neutral Citation:

Commissioner of Police v Cole (No. 2) [2018] NSWSC 561

Hearing dates:

26 April 2018

Date of orders:

02 May 2018

Decision date:

02 May 2018

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. Pursuant to s 7 of the Courts Suppression and Non-Publication Orders Act 2010 ("the Act") prohibit the publication or disclosure of the closed court sections of the transcript of the hearing on 11 April 2018, specified as follows:

 

(a) Commencing: Page 24, Line 35
Concluding: Page 26, Line 42
(b) Commencing: Page 27, Line 12
Concluding: Page 27, Line 27
(c) Commencing: Page 30, Line 35
Concluding: Page 33, Line 17
(d) Commencing: Page 41, Line 5
Concluding:    Page 46, Line 15

 

2. The above order is subject to the following exceptions:

 

(a) Confidential communications between the legal representatives for the Commissioner of Police and Counsel for the defendants in which it is reasonably necessary to disclose that information for the conduct of or defence of the proceedings; and
(b) Communications between the legal representatives for the Commissioner of Police and the Commissioner of Police, any Police officers associated with Strike Force Raptor and members of the Office of General Counsel of NSW Police for official purposes.

 

3. The Order is to operate throughout the Commonwealth of Australia pursuant to s. 11 of the Act.

 4. The Order is to continue to operate until further order of the Court pursuant to s. 12 of the Act.

Catchwords:

CIVIL PROCEDURE – hearings – suppression and non-publication – orders – proceedings concerning a ‘serious crime prevention order’ in respect of members of an Outlaw Motor Cycle Gang – whether necessary to suppress parts of transcript of hearing in closed court tending to identify the source of evidence in confidential affidavit of police officer – Court Suppression and Non-Publication Orders Act 2010 (NSW) s 8 – whether public interest in preserving secrecy outweighs public interest in publication – general concern that publication would endanger source – orders made with respect to confidential evidence without disclosing the evidence itself

Legislation Cited:

Courts Suppression and Non-Publication Orders Act 2010 (NSW) ss 7, 8, 11, 12
Evidence Act 1995 (NSW) s 130

Cases Cited:

Attorney General v Kaddour & Turkmani [2001] NSWCCA 456
Attorney General (NSW) v Lipton [2012] NSWCCA 156; (2012) 224 A Crim R 177
DPP v Smith (1996) 86 A Crim R 308
National Crime Authority v Gould (1989) 90 ALR 489

Texts Cited:

Nil

Category:

Procedural and other rulings

Parties:

Commissioner of Police (Plaintiff)
Mitchell Alexander Cole (First Defendant)
Benjamin James Main (Second Defendant)
Andrew Robert Manners (Third Defendant)
Matthew Francis Maybury (Fourth Defendant)
Troy Vanderlight (Fifth Defendant)

Representation:

Counsel:
B Thomson (Plaintiff)
P Lange (Defendants)

  Solicitors:
Crown Solicitor’s Office (Plaintiff)
Oxford Lawyers Parramatta (Defendants)

File Number(s):

2018/96624

Publication restriction:

Nil

Judgment

1. During the course of the hearing a confidential affidavit of Andrew McKenzie dated 12 April 2018 was read. Mr McKenzie is a police officer and it was the material annexed to his affidavit that resulted in my making an order under s 7 of the Courts Suppression and Non-Publication Orders Act 2010 (NSW) on the ground contained in s 8(1)(c) of that Act in relation to the affidavit. It also resulted in my closing the Court during that part of each counsel’s submissions dealing with the material annexed to that affidavit.

2. Both counsel sought to make their submissions in a manner that would not in any way disclose the identity or the source of the information annexed to that affidavit in order to protect the safety of that person. However, no order was sought nor made under that Act for the suppression of the closed court transcript.

3. Application is now made on behalf of the Commissioner to suppress the whole of the closed court section of the transcript on the basis of concerns that there is a potential for a reprisal attack against the person whose identity is said to be disclosed in the annexure to Mr McKenzie’s affidavit.

4. Attention is drawn to the following passages of that closed court transcript which it is submitted might, by reason of what is mentioned in those passages, give some basis for ascertaining the identity of the source. Those passages are:

(a)   T27:   12-17;

(b)   T42:   17-18

(c)   T43:   45-50

(d)   T44:   1-10

(e)   T45:   47-50

5. In the light of those passages the Commissioner submitted that the whole of the transcript for the closed court sessions should be suppressed. The Commissioner submitted that there is a general concern that there may be matters unknown to the Commissioner that people are familiar with, or references that were impossible to predict, that may be sufficient to identify the person who is the source of the information.

6. Counsel for the defendants submitted that the test to be applied under the Act is one of necessity. Counsel submitted that a suppression of the closed court sections of the transcript would be a fundamental departure from the ordinary process where defendants in both criminal and civil proceedings ought to know the basis of evidence which is used to come to a determination of the issues. That, counsel submitted, was a matter that ought to weigh heavily in favour of the release of the portions of the closed court transcript which do not lead to any endangerment of any person. Counsel submitted in the alternative that the suppression ought to be limited at most to the matters identified in the affidavit in support of the application, that is, the passages which I have identified at [4] above.

7. I have approached this application by reference, analogously, to the matter of public interest immunity where it is necessary for the Court to the receive the confidential material and to make a ruling about them without disclosing the material itself. In Attorney General v Kaddour & Turkmani [2001] NSWCCA 456 Sully J (with whom Spigelman CJ at Adams J agreed) said of s 130(3) of the Evidence Act 1995 (NSW):

[20]   … His Honour was entitled to have full regard to what was said in the various Confidential Statements; and to take the contents of those Statements fully into account without disclosing in any way or to anybody the contents of the Confidential Statements.

That statement reflected the Common Law as appears in DPP v Smith (1996) 86 A Crim R 308 at 310 and NCA v Gould (1989) 90 ALR 489 at 497.

8. The other appropriate analogy is that of private informers. In Attorney General (NSW) v Lipton [2012] NSWCCA 156; (2012) 224 A Crim R 177 Basten JA said:

[37]   Whether, even at common law, such a rule existed may be doubted. The importance of private informers to law enforcement has not diminished over the decades and, arguably, only the availability of reasonably watertight assurances, well founded in the law, can ensure the continued flow of such information. On the other hand, that principle cannot become a protection for unchallengeable and potentially malicious complaints which may lead to a wrongful conviction. Hence the exception where the court is satisfied that disclosure is necessary to avoid a wrongful conviction. However, clear applications of established principle do not demonstrate the absence of other forms of exception: they merely demonstrate the high value placed on the protection of informers.

[38]   In practice, informers fall into different categories, as do the threats attendant upon disclosure. Each case must depend, to a certain extent, upon its own facts, although the importance of maintaining trust in the ability of a police force to offer protection to informers is a consideration of general application.

[39] Whatever may be the principle applicable under the general law, the test to be applied under s 130 is clearly a balancing exercise which requires the court to be satisfied that, relevant to the present circumstances, the public interest in preserving secrecy or confidentiality in relation to a category of documents outweighs the public interest in their production. In undertaking that balancing exercise, the court is required to take into account those factors identified in sub-s (5) as are relevant in the circumstances of the case. That exercise is not to be constrained by unexpressed rules derived from the general law, although the same result may be expected on either approach.

9. I am mindful of the fact that these cases were specifically concerned with s 130 of the Evidence Act, but a similar approach had been taken at common law in both areas of discourse.

10. There are three sections of the transcript that record what happened during closed court sessions. The first portion commences at T24.33 and concludes at T27.27. I consider that there would be a risk to the safety of a person if most of this portion of the transcript were not suppressed. It would be inappropriate in this judgment to refer to specific passages in that regard. A small part of this portion of the transcript should be unredacted so it is clear where the particular affidavit was read.

11. Accordingly, the portion of the transcript commencing at T24.35 and concluding at T26.42 should be suppressed. Thereafter, the portion commencing at T27.12 and concluding at T27.27 should be suppressed.

12. The second section of the transcript is the part that records Senior Counsel for the Commissioner’s submissions. Without going into the detail of that section of the transcript, I consider that from reading it, a person’s safety may be impaired if any of that portion of the transcript is not suppressed.

13. Accordingly, the portion of the transcript commencing at T30.35 and concluding at T33.17 should be suppressed.

14. The third portion of the transcript records counsel for the defendants’ submissions. Again, a reading of that portion indicates that if this part of the transcript were not suppressed a person’s safety might be impaired.

15. Accordingly, the portion of the transcript commencing at T41.5 and concluding at T46.15 should be suppressed.

16. It is significant that the portions of the transcript that I have suppressed do not record matters of evidence but only submissions. I do not consider, therefore, that there is any disadvantage to either of the parties in suppressing those portions. The suppressed portions will be available for perusal by counsel on both sides so that proper advice can be given with regard to any appeal that might be sought to be brought from the orders that I made.

17. Accordingly, I make the following orders:

1.   Pursuant to s 7 of the Courts Suppression and Non-Publication Orders Act 2010 ("the Act") prohibit the publication or disclosure of the closed court sections of the transcript of the hearing on 11 April 2018, specified as follows:

(a)   Commencing:   Page 24, Line 35

Concluding:   Page 26, Line 42

(b)    Commencing: Page 27, Line 12

Concluding:    Page 27, Line 27

(c)   Commencing:   Page 30, Line 35

Concluding:    Page 33, Line 17

(d)   Commencing:   Page 41, Line 5

Concluding:    Page 46, Line 15

2.   The above order is subject to the following exceptions:

(a)   Confidential communications between the legal representatives for the Commissioner of Police and Counsel for the defendants in which it is reasonably necessary to disclose that information for the conduct of or defence of the proceedings; and

(b)   Communications between the legal representatives for the Commissioner of Police and the Commissioner of Police, any Police officers associated with Strike Force Raptor and members of the Office of General Counsel of NSW Police for official purposes.

3.   The Order is to operate throughout the Commonwealth of Australia pursuant to s 11 of the Act.

4.   The Order is to continue to operate until further order of the Court pursuant to s 12 of the Act.

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Decision last updated: 02 May 2018