Director of Public Prosecutions v Arico (Ruling No 1)
[2016] VCC 1143
•11 August 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CR-15-02021
| THE DIRECTOR OF PUBLIC PROSECUTIONS | Respondent |
| v | |
| ROCCO ARICO | Applicant |
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JUDGE: | HIS HONOUR JUDGE MISSO |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 July 2016 |
DATE OF RULING: | 11 August 2016 |
CASE MAY BE CITED AS: | DPP v Arico (Ruling No 1) |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1143 |
RULING
Subject: CRIMINAL LAW
Catchwords: Subpoena served on the Chief Commissioner of Police to produce documents – applicant to be charged with a number of criminal offences on indictment – whether a legitimate forensic purpose had been identified – whether it was on the cards or that there was a reasonable possibility that the documents will materially assist the applicant’s defence – whether the documents deal with matters of state and attract public interest immunity denying disclosure – applicant’s right to a fair trial – method to be employed by the court in considering objections – obligation to peruse documents – sufficiency of reasoning supporting refusal to permit access to documents
Legislation Cited: Crimes Act 1958; Firearms Act 1996; Drugs Poisons and Controlled Substances Act 1981; Telecommunications (Intercept and Access) Act 1979; Major Crime (Investigative Powers) Act 2004; Australian Crime Commission Act 2002; Independent Broad-Based Anti-Corruption Commission Act 2011; Evidence Act 2008
Cases Cited:Commissioner of Australian Federal Police v Magistrates’ Court of Victoria & Ors [2011] VSC 3; Holloway v State of Victoria [2015] VSC 526; State of Victoria v Lane [2012] VSC 328; Agar v McCabe [2014] VSC 309; Ryan v State of Victoria [2015] VSCA 353; R v Debono [2012] VSC 476; R v Mokbel(Ruling No 1) [2005] VSC 410; Thomas v Campbell (2003) 9 VR 136; R v Saleam (1989) 16 NSWLR 14; Matthews v SPI Electricity Pty Ltd & Ors (No 11) [2014] VSC 65; Krew v Federal Commissioner of Taxation (1971) 45 ALJR 249
Ruling: The applicant is entitled to the documents set out in Schedule “A” to these reasons. Categories 1(a), 1(e), 2, 3 and 5 of the subpoena are struck out.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr B Walmsley QC | Condello Lawyers |
| For the Chief Commissioner of Police | Ms R J Sharp | Victorian Government Solicitor’s Office |
| For the Director of Public Prosecutions | Mr K Armstrong | Office of Public Prosecutions |
HIS HONOUR:
Introduction
1 The accused, Rocco Arico (“the applicant”), will face his trial on a number of charges on 17 October 2016. He has served a Subpoena on the Chief Commissioner of Police (“the CCP”) dated 2 June 2016 seeking access to five categories of documents.
2 Mr B Walmsley QC appeared for the applicant. Ms R Sharp of counsel appeared for the CCP, and Mr K Armstrong of counsel appeared for the Director of Public Prosecutions (“the DPP”). Mr Armstrong has been retained to prosecute the trial of the applicant.
3 Mr Armstrong appeared at my request for the limited purpose of providing a DPP written outline of relevant facts to assist me in understanding how the prosecution of the applicant will be framed, and to otherwise assist me in understanding any other matters which might be relevant to my consideration of the issues arising out of the CCP’s objections. To ensure that there is absolutely no misunderstanding of the purpose of the DPP’s written outline, I will repeat the preface to the written outline. That is, it is not to be treated as if it is a summary of the prosecution opening.
4 I called on Mr Armstrong to inform me of a number of matters which I considered to be relevant. Firstly, he informed me that an indictment is yet to be drafted. Secondly, he informed me that I can assume that the summary of the charges referred to in paragraph 112 of the DPP’s written outline are being considered as the basis for the drafting of the indictment.
5 After each of the parties had made their relevant submissions, I informed them that I would mark the documents they had referred to as exhibits:
· The DPP written outline – exhibit DPP 1.
· The affidavit of Liam O’Connor, Detective Senior Constable of Police (“O’Connor”), sworn 14 July 2016 and exhibits LPO1, LPO2 and LPO3 – exhibit CCP 1.
6 The exhibits to O’Connor's affidavit have been marked in different colours to permit me to easily identify the parts of the documents to which access is denied. The colour coding also served the purpose of identifying the particular basis for the objection. In addition, I was provided with a copy of those documents with the highlighted parts completely redacted.
The starting point
7 I return to the DPP’s written outline for the purpose of summarising the charges on which the applicant will probably be indicted:
· Extortion with a threat to kill between 13 July 2014 and 27 February 2017, contrary to s27 of the Crimes Act 1958.
· Extortion with threat to inflict injury, contrary to s27 of the Crimes Act 1958.
· Extortion with threat to endanger life, contrary to s27 of the Crimes Act 1958.
· Extortion with threat to endanger property, contrary to s28 of the Crimes Act 1958.
· Blackmail on 11 November 2014, contrary to s87 of the Crimes Act 1958.
· Intentionally or recklessly causing injury to Witness “A”, contrary to s18 of the Crimes Act 1958.
· Being a prohibited person in possession of a firearm, contrary to s5(1) of the Firearms Act 1996.
· Possess a drug of dependence namely 1,4-butanediol, contrary to s73 of the Drugs Poisons and Controlled Substances Act 1981.
· Traffic a large commercial quantity of a drug of dependence, contrary to s71 of the Drugs Poisons and Controlled Substances Act 1981.
8 Mr Walmsley and Ms Sharp agreed with my observation that the CCP’s objections necessitated me looking at the relevant categories in the Subpoena through the prism of the charges, and more particularly, the likely evidence the prosecution will adduce at the applicant’s trial, and the likely defences which may be available to him.
What is in issue?
9 Ms Sharp informed me that of the five categories of documents to which the applicant requires access. Categories 1(b), 1(c), 1(d), 4(b), 4(c), 4(d) and 5(b) are not being pressed by the applicant.
10 I will deal with each category of documents in a manner consistent with the sequence in which Ms Sharp addressed the remaining categories of documents.
Categories 1(a), 1(e) and 2
11 Categories 1(a) and 1(e) are in the following terms:
“1. A copy of all:
(a) Documents (including records, notes, diary entries, emails, memorandum, reports, LEAP entries and correspondence, including file notes, of conversations and other records); and
…
(e) Records of interview between Police investigators,
relating to any proposed or potential witness in the prosecution against Mr Rocco Arico in which ARTHUR VOUTHAS is the Complainant and Liam O’Connor is the Informant (the prosecution), including but not limited to the following persons;
Savas Pastras;
Michael Keca;
James Harris;
Travis Eades;
Jesse Franco;
Michael Pastras;
Toby Mitchell;
Marc Nuri;
Con Vouthas;
George Messis;
Paul Silva; and
Gavin Preston.
Being persons with whom the Victoria Police have communicated, or attempt to communicate with in connection with the prosecution against Mr Arico.”
12 Category 2 is in the following terms:
“2.A copy of all recorded communications, whether covert or overt, between any, and which of the people listed in paragraph 1 above, and any and which Police investigator in the prosecution.”
13 In Commissioner of Australian Federal Police v Magistrates’ Court of Victoria & Ors,[1] J Forrest J summarised the principles of law relevant to the determination of whether a party is entitled to access documents produced under subpoena:
[1][2011] VSC 3
“(a) it is necessary for the party at whose request the witness summons was issued to identify expressly and precisely the legitimate forensic purpose for which access to the documents is sought;
(b) the identification of such a legitimate forensic purpose is to be considered by the court without inspecting the documents sought to be produced;
(c) the applicant for the witness summons must also satisfy the court that it is ‘on the cards’, or that there is a ‘reasonable possibility’, that the documents sought under the subpoena ‘will materially assist the defence’;
(d) a ‘fishing expedition’ is not a legitimate forensic purpose and will not be permitted;
(e) the relevance of a document to the proceeding alone will not substantiate an assertion of legitimate forensic purpose. There is no legitimate forensic purpose if the party is seeking to obtain documents to see whether they may be of relevance or of assistance in his or her defence;
(f) a mere assertion of bad faith by an applicant or that something might be found demonstrating bad faith is not enough – the criteria set out in (c) must be satisfied;
(g) in criminal proceedings a ‘more liberal’ view is taken by a court in respect of the application of the test. Special weight is to be given to the fact that the documents may assist the defence of the accused;
(h) where a party fails to demonstrate a legitimate forensic purpose, the court should refuse access to the documents and set aside the witness summons.”[2]
[2]at paragraph [28]. Footnotes omitted
14 In Holloway v State of Victoria,[3] Cavanough J referred to there being two elements to the test of whether there is a legitimate forensic purpose in permitting access to documents sought under subpoena. The first is whether the documents are relevant, and the second is whether it is “on the cards” that the documents sought would materially assist the applicant’s defence. In undertaking that review he concluded that it is insufficient for a party seeking access to documents to merely establish that the documents are or may be relevant.[4]
[3][2015] VSC 526
[4]at paragraphs [47] – [51]. Footnotes omitted
15 His Honour also reviewed a number of authorities to determine whether the expression “on the cards” is the same as “reasonable possibility”. There are a number of authorities where the two expressions are used synonymously. His Honour did not determine whether the two expressions are synonymous or distinguishable, but was content to determine the issue of law before him on the basis that the expressions are synonymous.[5]
[5]at paragraph [60]. His Honour's conclusion must be read in the context of his reference to State of Victoria v Lane [2012] VSC 328 in which Kyrou J considered that both expressions were synonymous – see paragraph [22]
16 In State of Victoria v Lane,[6] Kyrou J summarised the relevant legal principles which apply to a subpoena in a criminal proceeding:
[6]Supra
“[17]Where an accused in a criminal proceeding seeks production of documents pursuant to a subpoena, the accused must satisfy the court that he or she has a legitimate forensic purpose. That purpose must be identified expressly and with precision.
[18]In order to demonstrate a legitimate forensic purpose, the accused must show that ‘it is on the cards’ that the documents would materially assist the accused in his or her defence. The expression ‘on the cards’ means ‘reasonable possibility’. Accordingly, the test for determining whether there is a legitimate forensic purpose is whether a reasonable possibility exists that the documents would materially assist the defence.
[19]The reasonable possibility test should be applied flexibly and with common sense in order to give the accused a fair opportunity to test the Crown’s case and to take advantage of any applicable defences.
[20]Mere speculation that the documents might assist the accused’s defence is insufficient to satisfy the reasonable possibility test. This is because mere speculation amounts to a fishing expedition which can never constitute a legitimate forensic purpose. Mere relevance to an issue in the proceeding is also not sufficient to establish a legitimate forensic purpose.”[7]
[7]at paragraphs [17] - [20]. Footnotes omitted. His Honour’s summary was applied by T Forrest J in Agar v McCabe [2014] VSC 309 at paragraph [20]
17 I have referred to these authorities and the principles of law for which they stand as the necessary background in analysing the basis on which the access to documents is sought by the applicant, and to then determine whether he should be given access to those documents.[8]
[8]Ms Sharp provided me with a written outline of these legal principles which enabled me to grapple with the legal principles quickly. Mr Walmsley agreed that Ms Sharp's written outline correctly summarised the relevant principles of law.
18 O’Connor is the informant to the charges on which the applicant is likely to be indicted. In paragraph 8 of his affidavit, he said:
“The CCP objects to providing any further material sought by Category 1 (a) and material sought in Category 1 (e) on the grounds that there is no legitimate forensic purpose for which the material is being sought. None of the persons named in paragraph 1 (e) of the subpoena is a witness in the trial. The accused has not identified any basis on which the information might assist the accused.”
19 Part of the paragraphs from which I have just quoted contain a submission of law, namely, whether there is a legitimate forensic purpose and whether there is a basis upon which the information sought by the applicant might assist him. I will ignore those parts of the paragraph, but the importance of what I have quoted is that O’Connor has stated categorically and unequivocally that none of the persons named in Categories 1(a) and 1(e) are to be a witness in the trial.
20 Mr Armstrong, who was in court during the submissions made by Mr Walmsley and Ms Sharp, did not contradict O’Connor's evidence nor the submission made by Ms Sharp that none of the persons named are witnesses in the trial.
21 Mr Walmsley provided me with a written outline of submissions which he supplemented by oral submissions. In his written outline, he made the following submissions:
“7.… the role of each of the thirteen named persons in Categories 1 and 4, in particular one of the Subpoena, is an exercise engaged here to determine the criminal activity of those persons, in combination with witness ‘A’, or otherwise, in their own right.”
22 And later:
“12.Each of the named individuals here were the subject of identification as persons with whom Witness ‘A’ relevantly associated, during the cross examination at Committal, and accordingly, in the investigators treatment of those persons, potential witnesses or otherwise, there is a strong likelihood or potential for the discovery of material capable of contradicting, or qualifying the assertions of that fundamentally important witness.”
23 The first submission identifies two bases upon which it is said that there is a legitimate forensic purpose in allowing access to the particularised documents relevant to those witnesses, namely, the criminal activity undertaken by each of those witnesses, and the criminal activity undertaken by each of them in combination with Witness “A”.
24 The second submission asserts that either there is a “strong likelihood” or a “potential” to discover material which might be capable of diminishing or destroying the creditworthiness and reliability of Witness “A”. It is not clear to me whether that other “material” is a reference to the material referred to in paragraph 7, or is a reference to different material.
25 Mr Walmsley expanded upon his written outline in his oral submissions. In essence, his oral submissions were a graphic demonstration of how the credibility and reliability of Witness “A” will be attacked and that if that attack is successful, that the DPP’s case will fail; however, there was nothing in his oral submissions which detracted from, or qualified the substance of, what I have quoted from his written outline.
26 The most serious vice in the drafting of these categories is that they are drafted so broadly. The drafter endeavoured to throw the broadest net possible to draw in anything and everything thought to be of interest to the applicant without any attempt to adequately satisfy the first of the legal principles referred to by J Forrest J, and that is, “to identify expressly and precisely the legitimate forensic purpose for which access to the documents is sought”.
27 Throwing the net so widely cannot possibly equate to an identification of the legitimate forensic purpose expressly and precisely, but rather the opposite is the case. Such a technique of drafting will inevitably lead to the conclusion that the applicant is on a fishing expedition, and it is clear that a fishing expedition is not a legitimate forensic purpose and will not be permitted.
28 It is not necessary, therefore, to go any further. Determining relevance, whether it is on the cards or whether there is a reasonable possibility that the documents sought might materially assist the applicant in his defence, is a task that can only be undertaken when, and if, the applicant is able to identify expressly and precisely the legitimate forensic purpose for which access to identifiable documents is sought. It is only then that each document can be analysed and assessed against relevance and whether it is on the cards or whether there is a reasonable possibility that the documents might assist the applicant in that way.
Category 3
29 Category 3 is in the following terms:
“A copy of all recorded communications, whether covert or overt, between any other person, whose name does not appear on the list of persons in paragraph 1 hereof, and any Police investigator in the prosecution.”[9]
[9]The reference to “paragraph 1” is the same as Category 1
30 The criticism I have made of the drafting of the categories dealt with above applies with the same force to this category. I repeat my analysis in paragraphs 27-29 above.
Category 5(a)
31 Category 5(a) is in the following terms:
“Recorded telephone communications and text messages between Mr Arico and any other person intercepted by Police investigators under the telephone interception warrant issued pursuant to the Telecommunications (Intercept and Access) Act 1979 relating to the prosecution against Mr Arico.”
32 The CCP has given the applicant access to a large portion of those communications. What has been provided has been described by O’Connor as follows:
“20.Between 21 November 2014 and 19 January 2015, and between 28 January 2015 on 5 March 2015, communications to and from the Accused’s mobile telephone were lawfully intercepted.
21.More than 53,000 telephone calls and text messages were intercepted and fall within Category 5(a).
22.All evidentiary calls have been provided to the Accused, including:
22.1All communications between the Accused and Witness A in 2014 and 2015, including calls not answered;
22.2All relevant communications between the Accused and Robert Morabito in 2014 and 2015;
22.3All relevant calls between the accused and Pieter Speziale in 2014 and 2015;
22.4All calls in which a ‘Vespa’ motorcycle is referenced in the call log were provided.
23.On 30 June 2016, solicitor for the Accused, Anthony Condello, Victorian Government Solicitors Office and amended the request for calls to the “the period between 1 January 2014 and March 2015” and stated that he would not press for a copy of the transcripts. I have identified 14,321 calls that fall within this period.
24.The CCP objects to providing any further material sought by Category 5(a) on the grounds that there is no legitimate forensic purpose for its production.”
33 The documents which the CCP has refused to provide access to have not been provided to me. Nor have they been described by O’Connor. Consistent with the observations made by J Forrest J, I am obliged to identify the legitimate forensic purpose for which access to the documents is sought without inspecting the documents sought to be produced.
34 The drafting of this category does not suffer from the vice of the other categories which I have dealt with above. The drafting is sufficiently narrow for the CCP to understand what is being sought. Firstly, the type of communications are identified. Secondly, the persons between whom those communications occurred has been identified. Thirdly, it is communications of that type in between those persons intercepted pursuant to the Telecommunications (Intercept and Access) Act 1979, and lastly, they are communications “relating” to the prosecution of the applicant.
35 The position taken here by the CCP is that the applicant has not identified the legitimate forensic purpose relevant to the remaining documents. There is an inherent contradiction in the CCP taking that position because its own assessment of this category led to the applicant being given access to a large portion of those documents. Despite that inherent contradiction, I am nonetheless obliged to, as it were, start afresh in determining whether the applicant should be given access to the documents sought. It may be that the CCP gave the applicant such access for reasons not connected with a proper application of the principles of law, but for some other reason.
36 Therefore, I think I must ignore the fact that the CCP has given the applicant access to a large portion of the communications. Mr Walmsley’s written outline and additional oral submissions do not “identify expressly and precisely the legitimate forensic purpose for which access to the documents are sought”. He submits that I should ignore any opinion held by O’Connor as to why access should be denied to the documents because it may be based on factors inconsistent with the prism through which the applicant is looking, that is, whether the communications will materially assist his defence.
37 I do not propose to repeat my analysis of the principles of law relevant to the identification expressly and precisely of the legitimate forensic purpose because I have undertaken that task at some length already. I simply repeat that there is an inevitability that if the applicant does not satisfy me that he has undertaken that process of identification, then the applicant has set out on a fishing expedition. I also repeat that it is not then necessary for me to go any further for the same reasons that I set out in paragraph 29 above.
Category 4
38 Category 4 is in the following terms:
“(a) Records, notes, diary entries, emails memoranda, reports, LEAP entries and correspondence including file notes of conversations and other records;
(b) Transcripts of examination hearings conducted at the Office of the Chief Examiner pursuant to the Major Crime (Investigative Powers) Act 2004;
(c) Transcripts of examination hearings conducted at the Australian Crime Commission pursuant to the Australian Crime Commission Act 2002;
(d) Transcripts of examination hearings conducted at the Independent Broad-based Anti-corruption Commission (IBAC) pursuant to the IBAC Act 2011;
(e) Records of Interview between Police investigators, and;
(f) Recorded communication, whether covert or overt, between any and which Police investigator in the prosecution, and relating to the following witnesses in the prosecution against Mr Arico.”
39 The documents referred to in Category 4(a) and 4(f) have been produced subject to redactions based upon relevance and s130 of the Evidence Act 2008. The CCP does not have any documents falling into Category 4(e). What is left for me to consider are the redactions in Category 4(a) and 4(f).
40 The CCP has identified that the documents sought by the applicant fall into four broad categories:
· Documents disclosing information relating to ongoing investigations.
· Documents disclosing information relating to the safety and protection of witnesses.
· Documents which relate to police methodology.
· Documents which are irrelevant.
41 The documents I have been provided came in five arch lever folders. There are 42 numbered dividers, behind which are a body of documents making up the whole of the documents in the folders. For my assistance the relevant documents have been colour-coded as follows:
· Documents relating to ongoing investigations have been colour-coded in yellow.
· Documents relating to the safety and protection of witnesses have been highlighted as follows:
§ those relating to the identity or whereabouts of a witness or their family in blue.
§ those relating to the safety of a witness or witnesses, including advice about managing safety issues, in green.
§ those relating to the protection of witnesses in pink/red.
· Documents relating to police methodology have been colour-coded in purple.
· Documents which are unrelated or irrelevant to the prosecution of the applicant have been colour-coded in orange.
42 I have read through the five arch lever folders of documents and have located all of the highlighted segments to understand the nature of the individual documents, their content, and ultimately, the basis upon which objection is taken to disclosure of those documents to the applicant.
43 I will firstly turn to s130(1) which is in the following terms:
“If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence.”
44 Subsection (4) provides guidance as to the circumstances in which information or a document may be taken to relate to matters of state for the purposes of ss(1). It is in the following terms:
“Without limiting the circumstances in which information or a document may be taken for the purpose of subsection (1) to relate to matters of state, the information or document is taken for the purposes of that subsection to relate to matters of state if adducing it as evidence would—
…
(c)prejudice the prevention, investigation or prosecution of an offence;
…
(e)disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State … .”
45 Subsection (5) provides that the court is to take into account the following matters in determining whether the applicant should be given access to the documents:
“(a)the importance of the information or the document in the proceeding;
(b)if the proceeding is a criminal proceeding— whether the party seeking to adduce evidence of the information or document is an accused or the prosecutor;
(c)the nature of the offence, cause of action or defence to which the information or document relates, and the nature of the subject matter of the proceeding;
(d)the likely effect of adducing evidence of the information or document, and the means available to limit its publication;
(e)whether the substance of the information or document has already been published;
(f)if the proceeding is a criminal proceeding and the party seeking to adduce evidence of the information or document is an accused— whether the direction is to be made subject to the condition that the prosecution be stayed.”
46 The statutory immunity provided by s130 is intended to substantially reflect common law principles and its content and operation is informed by the common law. What difference there is between s130 and the common law are of no practical significance.[10]
[10]Ryan v State of Victoria [2015] VSCA 353 (“Ryan”) at paragraphs [53]-[67] and [100]
47 The common law principles and their application were summarised by Tate JA in Ryan:[11]
[11]Supra
“[54] The foundational common law statement of principle on public interest immunity is found in Sankey v Whitlam. As Gibbs ACJ said:
‘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, 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 that 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.’
[55]A party asserting a claim of public interest immunity to protect a document from disclosure is required to identify with precision the ‘character of the particular information in issue and the nature of the particular litigation’ in which the public interest issue arises. The party seeking access to the document must demonstrate a legitimate forensic purpose in disclosure.
[56]It is well accepted that the categories of public interest are not closed. Categories of public interest include claims made in relation to national security, Cabinet deliberations, high-level advice to government, intra-government communications or negotiations, police informers, other types of informers, police investigations, and the activities of intelligence officers. Under the common law, a ‘rough but accepted’ distinction is drawn between ‘class claims’ and ‘contents claims’; that is, between public interest immunity claims the subject of which is a document falling within a specific ‘class’ irrespective of its content, for example a Cabinet document, and a document attracting the immunity because of the sensitive nature of its ‘content’.
[57] In undertaking the balancing exercise, the court will generally have regard to a number of considerations. These include whether non-disclosure would impede the accused’s right to a fair trial, the evidentiary value and importance of the documents to the issues, whether ordering disclosure would cause sources of information to ‘dry up’, whether preserving candour would facilitate the public function in issue, and whether the material is already in the public domain or has current sensitivity. The court is also to accord weight to an assertion by an authorised representative of government that the public interest would be at risk in the event of disclosure.”[12]
[12]Ryan at paragraphs [54]-[57] – footnotes omitted
48 In addition to the colour coding of the documents, O’Connor referred specifically to the documents falling into the three broad categories:
· Ongoing investigations[13]
· Safety and protection of witnesses[14]
· Police methodology.[15]
[13]paragraphs [110]-[114]
[14]paragraphs [115]-[121]
[15]paragraphs [122]-[127]
49 I read the documents in the folders by cross-referencing the colour coding described in O’Connor’s affidavit, with the provisions of s130, and also the authorities referred to by Tate JA in Ryan relevant to police methodology;[16] R v Debono[17] relevant to ongoing police investigations; and R v Mokbel(Ruling No 1)[18] relevant to revealing personal information about witnesses. Additionally, I have borne in mind that there is one important consideration which must be balanced when considering the CCP’s objections, that is, the applicant’s right to a fair trial. This must figure prominently in my consideration as to whether to uphold or dismiss the CCP’s objections to giving the applicant access to any of the documents.
[16]Ryan at [68]-[89]
[17][2012] VSC 476
[18][2005] VSC 410
50 I enquired of counsel as to the method that I should employ in disclosing my pathway of reasoning, given that significant parts of O'Connor’s affidavit are underlined to demonstrate those parts which are confidential and have not been disclosed to the applicant, and what the applicant has been provided are redacted documents.
51 Ms Sharp submitted that I could validly follow the method employed by Gillard J in Mokbel. His Honour, under the heading of “Production of documents” referred to the fact that eight folders were delivered to him which he perused. His Honour then stated in the simplest terms that he had “carefully considered the public interest matters for and against disclosure”. His Honour briefly and succinctly described the documents and then stated his conclusion. For example, in relation to “Folder 8”, his Honour decided to uphold the objection. He simply stated that the documents involved informers and persons who had provided information, and later he said “… folder 8 shall not be made available”.[19]
[19]at paragraph [98]
52 Mr Walmsley agreed that the proposed method submitted by Ms Sharp, and employed by Gillard J, is adequate for me to follow and is a proper discharge of my obligation to disclose my pathway of reasoning.
53 I will now specifically deal with the Category 4(a) and 4(f) documents. I will firstly describe the content of those documents sufficiently to allow my pathway of reasoning to be understood.
54 The CCP objects to giving access to the redacted documents in dividers 1-6 on the basis of relevance, and with respect to the redacted documents in dividers 1 and 3, on the basis that it is not in the public interest to give access to those documents because they contain information relevant to the safety and protection of witnesses. The documents in these dividers contain the diarised notes of Detective Senior Constables O’Connor, Kerry, Hayes, Hartwig, Pickett and Ali.
55 The CCP objects to giving access to the redacted documents in dividers 8, 9 and 20 on the basis of relevance. The documents in these dividers contain the criminal histories of Stacey Harris and Arthur Vouthas, and the diarised notes of Detective Senior Constable Thomas.
56 The CCP objects to giving access to the redacted documents in dividers 15, 17, 19, 23, 24, 25, 26, 27, 28, 30, 31, 33 and 38 on the basis of relevance; that access to them will compromise the safety of prospective witnesses, and with respect to the redacted documents in dividers 27 and 38, that it is not in the public interest to give access to those documents because they contain information relevant to an ongoing criminal investigation. The documents in these dividers contain an incident report dated 27 December 2010, four surveillance logs, the transcript of an interview between an investigator and Savas Pastras, diarised notes of Detective Senior Constables Hayes, Bell and Ali, Senior Sergeant Bingham, Sergeant Fairgrieve, Detective Senior Sergeant Trichias, Sergeant Dolman, Detective Sergeant O’Connell, an investigation log, and transcript of a recording between investigators and Witness “A” on 23 June 2014.
57 The CCP objects to giving access to the redacted documents in dividers 21 and 22 on the basis of relevance, and that providing access will prejudice an ongoing police investigation, compromise the safety of prospective witnesses, and reveal police methodology. The documents in these dividers contain the diarised notes of Detective Senior Constables O’Connor and Pickett.
58 The CCP objects to giving access to the redacted documents in dividers 29 and 37 on the basis of relevance, and that access will compromise an ongoing police investigation. The documents contain the diarised notes of Detective Sergeant Morse and the transcript of a recording between investigators and Witness “A” dated 23 June 2014.
59 The CCP objects to giving access to the redacted documents in dividers 16, 39 and 40 on the basis that access will compromise the safety of a prospective witness, and with respect to dividers 39 and 40, on the basis of relevance and that access will reveal police methodology. The documents in these dividers contain photographs of a mobile phone, a transcript of a recording of an interview between an investigator and Witness “A” on 2 February 2015, and the diarised notes of Detective Senior Constable Jordan Brown.
60 Now that I have identified the documents in the dividers, and have provided a sufficient description of those documents, I propose to deal with all of the documents in those dividers collectively because the conclusion I have reached is common to all of the documents in those dividers.
61 I uphold the CCP’s objection to the production of the redacted documents. There are very few occasions when the applicant is referred to in these documents. What references there are to him are brief and inconsequential, and ultimately, the documents would not materially assist the applicant’s defence. It is trite to say that the question of public interest immunity can only arise where it is firstly established that the documents are relevant and contain material evidence.[20]
[20]Matthews v SPI Electricity Pty Ltd (No 11) [2014] VSC 65 at paragraph [24][k] – footnote omitted – ‘in order for the public interest in the administration of justice to arise in the balancing process, the documents must contain ‘material evidence’.
62 Even if could be said that the documents are, at their highest, tangentially relevant, they would nevertheless fall well short of being capable of having an important bearing upon the ultimate decision at trial.[21] The public interest could not therefore militate in favour of giving access when weighed against the objections raised by the CCP.
[21]Krew v Federal Commissioner of Taxation (1971) 45 ALJR 249
63 I will next deal with documents to which the applicant must be given access.
64 The CCP objects to giving access to the redacted documents in dividers 32, 34, 35 and 36 on the basis of relevance, and that it is not in the public interest to give access to those documents because they contain information relevant to an ongoing police investigation, and the safety of prospective witnesses. Additionally, with respect to the redacted documents in divider 32, that it is not in the public interest to give access to those documents because they contain information relevant to police methodology. The documents contain a management log relevant to Witness “A”, a transcript of recording between investigators and Witness “A” dated 9 June 2014, 16 June 2014 and 17 June 2014.
65 I propose to order that the applicant have access to parts of those documents set out in Schedule “A” (attached to this ruling). The documents are relevant because they may be capable of use by the applicant to impugn the credibility of Witness “A”. The following is sufficient to disclose my pathway of reasoning in reaching this conclusion:
· The documents comprise potential admissions by Witness “A” of unlawful conduct.
· The documents disclose debts owed by Witness “A” to other persons, and are relevant to the issue of whether others were involved in the events which led to the proposed charges.
· The documents disclose a discussion between an investigator and Witness “A” in which it is suggested that help/protection will be provided in exchange for Witness “A”’s commitment to assist in the prosecution of the accused.
66 I have been careful to read these documents in the context of the issue of legitimate forensic purpose. My reasoning in giving the applicant access to these documents is that I think it is on the cards or that there is a reasonable possibility the documents will materially assist the applicant’s defence. Documents which go simply to credit create no less an entitlement to access. In Thomas v Campbell,[22] Nettle J (as he was then) said as much when citing R v Saleam[23] for the proposition that the test to be applied is whether the material is capable of acceptance, and if so, whether it would affect the credit of a witness that, having regard to the part played in the trial by the witness, it is likely that a jury might arrive at a different verdict.
[22][2003] 9 VR 136
[23][1989] 16 NSWLR 14
67 Part of the material relevant to Witness “A”’s credibility, to which I have just referred, is objected to on the basis of public interest immunity. That material is contained within dividers 32 and 34.
68 The material in divider 32 is objected to on the basis that its disclosure would prejudice an ongoing investigation. I can only assume that in this context the objection refers to an investigation into the conduct of SP. As this redacted content is merely an acknowledgement of a debt owing to SP, I am not satisfied that its disclosure would compromise an investigation, particularly in light of the fact that the debt is referred to in the prosecution opening. I consider the redaction to be an oversight, and even if that is not the case, the material does not relate to the public interest claimed and must therefore be disclosed as relevant evidence.
69 A relevant portion of the material in divider 34 is objected to on the basis that disclosure would compromise the safety of witnesses. The material discloses a discussion between an investigator and Witness “A” in which it is suggested that help/protection will be provided in exchange for Witness “A”’s commitment to assist in the prosecution of the accused. I do not accept that disclosure of an agreement alone would threaten the safety of Witness “A”. Therefore, while I accept that there is a legitimate public interest in protecting the safety of confidential witnesses, this material does not relate to the public interest claimed and must therefore be disclosed as relevant evidence.
Conclusion
70 I uphold the CCP’s objections, save with respect to the documents set out in Annexure “A” to these reasons.
71 Therefore, I order that 1(a), 1(e), 2, 3 and 5 be struck out.
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Schedule “A”
| DOCUMENT | PINPOINT REFERENCE | EXCERPT FROM DOCUMENT | BASIS OF REDACTIONS IN DOCUMENT |
| 32 | pg 26 line 33 to pg 26 line 43 | “I asked why PASTRAS thought he owed | Ongoing Investigation/s |
| 34 | pg 24 line 14 to pg 26 line 17 | “Do you owe money to … His name Bass – Bass” | Irrelevant |
| pg 29 line 24 to pg 30 line 11 | “Do you owe anyone … I don’t know what it is” | Irrelevant | |
| pg 47 line 3 to pg 47 line 6 and pg 48 line 7 to pg 49 line 6 | “You’ve got to sign … Yeah” and “I’m talking about your ideal … Yeah” | Safety of witness | |
| 35 | pg 87 line 22 to pg 88 line 20 | “If something … I swear” | Irrelevant |
| pg 214 line 6 to pg 222 line 1 | “I remember one we … Yeah” | Irrelevant | |
| 36 | pg 185 line 5 to pg 205 line 12 | “And at the back of the room … Yep” | Irrelevant |
| pg 210 line 17 to pg 211 line 6 | “Because when - when … they couldn’t put nothing” | Irrelevant | |
| pg 221 line 6 to pg 223 line 3 | “You know that coke … Yeah” | Irrelevant | |
| pg 299 line 17 to pg 301 line 8 | “All right, and – and that’s … Yeah” | Irrelevant | |
| pg 475 line 8 to pg 476 line 14 | “And then one … That’s all right…?” | Irrelevant | |
| pg 547 line 3 to pg 549 line 4 | “Like I said, before the attacks … come up the lane.” | Irrelevant |
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