Director of Public Prosecutions v Anderson

[2021] VSC 311

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2020 0375

DIRECTOR OF PUBLIC PROSECUTIONS	Crown
v
NICOLE ANDERSON	Accused

S ECR 2020 0377

DIRECTOR OF PUBLIC PROSECUTIONS	Crown
v
TRENT PEARSON	Accused

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JUDGE:	Beale J
WHERE HELD:	Melbourne
DATE OF HEARING:	31 May 2021
DATE OF JUDGMENT:	7 June 2021
CASE MAY BE CITED AS:	Director of Public Prosecutions v Anderson & Anor
MEDIUM NEUTRAL CITATION:	[2021] VSC 311

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CRIMINAL LAW – Co-accused both charged with murder – Public Interest Immunity claim by Chief Commissioner of Police – Confidential information includes information which if disclosed could reveal the identity of a police informer – No prospect that disclosure of confidential information could substantially assist the accused in relation to their murder trial – Evidence Act 2008 (Vic) ss 130, 131A – Jarvie v Magistrates’ Court of Victoria [1995] 1 VR 84 applied.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P Bourke QC	Office of Public Prosecutions
For the Accused Anderson	Mr M Thomas	Furstenberg Law
For the Accused Pearson	Mr J Desmond	Emma Turnbull Lawyers
For the Chief Commissioner of Police	Ms A Haban-Beer	Victorian Government Solicitor’s Office

HIS HONOUR:

1. This is a public interest immunity ruling. Pursuant to ss 130 and 131A of the Evidence Act 2008 (Vic), the Chief Commissioner of Victoria Police (“Chief Commissioner”) seeks a non-disclosure order in relation to certain confidential information.

1. The confidential information consists of:

(a)   information relevant to the trial of the accused for the murder of Zane Meyer on 12 May 2020;

(b)  information about unrelated police investigations;

(c)   the personal information of various people; and

(d)  personal information and contact details of police.

1. Only the information referred to in paragraph 2 (a) above is of any relevance to the trial of the accused. I need say nothing more about the other information referred to in paragraph 2, save that I direct it not be disclosed to the accused.

1. The Chief Commissioner relies on the following materials:

·an open affidavit by Detective Leading Senior Constable Thexton dated 12 March 2021;

·a confidential affidavit by Detective Thexton dated 6 May 2021 which sets out the confidential information;

·open written submissions dated 7 May 2021;

·confidential written submissions dated 31 May 2021; and

·oral submissions at an open hearing on 31 May 2021.

1. Counsel for both accused indicated at the open hearing on 31 May 2021 that they had no objection to me reading the confidential materials relied on by the Chief Commissioner.

1. Pearson and Anderson relied on written submissions dated 19 May 2021 and 22 May 2021 respectively, as well as oral submissions at the open hearing on 31 May 2021. 

1. If any of the confidential information referred to in paragraph 2(a) above was disclosed to the accused, it could lead to the disclosure of the identity of a police informer.  I am satisfied by the confidential affidavit of Detective Thexton dated 6 May 2021 that this would place the informer at significant risk of grave harm.  Disclosure of the informer’s identity may also endanger others close to the informer and have a chilling effect on current and potential police informers.

1. The parties were in agreement that if disclosure of the informer’s identity could (not would) be of substantial assistance to the accused in the conduct of their defence, the material ought to be disclosed.[1]  I am satisfied that none of the information which is relevant to the trial of the accused has that potential.

   [1]Jarvie v Magistrates’ Court of Victoria [1995] 1 VR 84.

1. Accordingly, I order that the confidential information not be disclosed to the accused.