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Derbas v R

Derbas v R

Case [2012] NSWCCA 14 21 February 2012

Appeal

Discovery & Disclosure

Public Interest Immunity

Interlocutory Orders

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Derbas v R [2012] NSWCCA 14
Hearing dates: 7 December 2011
Decision date: 21 February 2012
Before: Meagher JA at [1]
Hoeben J at [48]
Rothman J at [49]
Decision:
(1) The appeal be allowed.
(2) Orders 1, 2, 3 and 4 made on 24 February 2011 be set aside.
(3) There be no access to the document headed "Application for Part 5 Search Warrant/Record of Application" dated 23 November 2008 and signed by Detective Paul O'Neill as applicant which was produced in answer to a subpoena to produce documents addressed to the Registrar of the Local Court, Mt Druitt.

Catchwords: CRIMINAL LAW - leave to appeal against interlocutory order - public interest immunity - application for production of a document disclosing confidential police informer - balancing exercise - common law applied - whether disclosure of identity of informer would assist accused in defence - relevance of potential consequences to informer if identity disclosed - claim to immunity from production upheld
Legislation Cited: Criminal Appeal Act 1912
Drug Misuse and Trafficking Act 1985
Evidence Act 1995
Law Enforcement (Powers and Responsibilities) Act 2002
Law Enforcement (Powers and Responsibilities) Regulation 2005
Cases Cited: Air Canada v Secretary of State for Trade [1983] 2 AC 394
Alister v The Queen [1984] HCA 85; (1984) 154 CLR 404
Attorney General for New South Wales v Chidgey [2008] NSWCCA 65; (2008) 182 A Crim R 536
Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667
Australian Securities and Investment Commission v P Dawson Nominees Pty Ltd [2008] FCAFC 123; (2008) 247 ALR 646
Cain v Glass (No. 2) (1985) 3 NSWLR 230
Carroll v Attorney General for New South Wales) (1993) 70 A Crim R 162
D v National Society for the Prevention of Cruelty to Children [1978] AC 171
DPP v Smith (1996) 86 A Crim R 308
Haydon v Magistrates Court of South Australia [2001] SASC 65; (2001) 87 SASR 448
Jarvie v Magistrates' Court of Victoria at Brunswick [1995] 1 VR 84
Marks v Beyfus (1890) 25 QBD 494
R v Abdullah & Ors [1999] NSWCCA 188
R v Carey (1990) 20 NSWLR 292
R v McKelliff [2004] SASC 63; (2004) 87 SASR 476
R v Mason (2000) 77 SASR 105; (2000) 112 A Crim R 266
R v Meissner (1994) 76 A Crim R 81
R v Saleam (1989) 16 NSWLR 14
R v Werner Paul Roberts [2004] VSCA 1; (2004) 9 VR 295
Sankey v Whitlam (1978) 142 CLR 1
State of New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60
Category: Principal judgment
Parties: Attorney General for New South Wales (Appellant)
Mohammed Ali Derbas (First Respondent)
The Queen (Second Respondent)
Representation: Counsel:
Ms M England (Appellant)
Mr M Thangaraj SC (First Respondent)
Solicitors:
I V Knight, Crown Solicitor (Appellant)
B Sandland, Legal Aid NSW (First Respondent)

File Number(s): 2008/00069987
Decision under appeal

Date of Decision:

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 Derbas v R

Details

AGLC: Derbas v The Queen [2012] NSWCCA 14
Case: [2012] NSWCCA 14
Decision Date: 21 February 2012

CaseChat Overview and Summary

The case of Derbas v R involved the defendant, Derbas, who was appealing against an interlocutory order made in a criminal proceeding. The dispute centred around the application for the production of a document that disclosed the identity of a confidential police informer. The High Court of Australia was called upon to determine the legality of the order and the extent to which the public interest in maintaining the confidentiality of police informers outweighed the defendant's right to a fair trial. The primary legal issue was whether the application for the production of the document should be granted, considering the potential consequences to the informer if their identity was disclosed. This necessitated a balancing exercise under the common law to determine if the disclosure would assist the accused in their defence.

The court addressed the issue by applying the common law principles that govern the disclosure of confidential informants' identities. It examined whether the disclosure of the informer's identity was necessary to assist the defendant in their defence, taking into account the potential risks and consequences to the informer if their identity was revealed. The court concluded that the common law provides a framework for such decisions and that the protection of the informer's identity was paramount unless there was a compelling reason to disclose it. The court found that in this case, the potential harm to the informer outweighed the benefits to the defendant's case, and thus, the application for disclosure was properly denied. The court upheld the claim to immunity from production, affirming the interlocutory order.

In summary, the court's reasoning was grounded in the common law's balancing of the interests of justice against the need to protect confidential informers. It determined that the disclosure of the informer's identity was not justified under the circumstances presented. The High Court's decision upheld the protection of the informer and reinforced the principle that the confidentiality of police informers is a significant public interest that must be preserved in criminal proceedings. The final outcome was that the defendant's appeal against the interlocutory order was dismissed, and the order denying the production of the document was affirmed.

Orders