Director of Public Prosecutions v Asling (Ruling No 1)
[2017] VSC 37
•2 February 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2016 0092
BETWEEN
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STEPHEN JOHN ASLING |
---
JUDGE: | KAYE JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 1 February 2017 |
DATE OF JUDGMENT: | 2 February 2017 |
CASE MAY BE CITED AS: | DPP v Asling (Ruling No 1) |
MEDIUM NEUTRAL CITATION: | [2017] VSC 37 |
---
CRIMINAL LAW – Murder – Evidence – Public interest immunity – Claims by Chief Commissioners of Victoria Police and of New South Wales Police – Evidence Act 2008 s 130.
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr A Tinney SC with Ms S Flynn | Solicitor for Public Prosecutions |
| For the Accused | Mr M O’Connell SC with Mr M Goldberg | Stary Norton Halphen |
| For Victorian Chief Commissioner of Police | Ms R Ellyard with Mr J Bayly | Victorian Government Solicitor Office |
| For the New South Wales Police Commissioner | Mr R Gipp |
HIS HONOUR:
The accused is charged with the murder of Graham Kinniburgh at Kew on 13 December 2003. Subpoenas have been issued on behalf of the accused directed to Victoria Police and the New South Wales Commissioner of Police. The recipients of those subpoenas have objected to producing a number of documents referred to in the subpoenas, either wholly or in an unredacted form, on the basis that the documents, or the relevant parts of them, are covered by public interest immunity.
The accused is alleged to have carried out the murder of Kinniburgh with Terrence Blewitt outside Kinniburgh’s home in Belmont Avenue, Kew. Blewitt was last seen on 12 April 2004, and his deceased body was recovered in Thomastown in January 2016. The circumstances of his death are the subject of a police investigation entitled ‘Operation Snipe’. It would appear that aspects of that investigation are connected with the police investigation into the killing of Kinniburgh, which was entitled ‘Operation Maras’.
In the present case, the prosecution rely substantially on three witnesses to implicate the accused in the killing of Kinniburgh. Those witnesses are referred to as witness A, witness C, and witness P. Witness A first made a statement to the police in 2006, and witness C made a statement to the police in 2010. Witness P first made a statement to the police on 16 July 2015. The accused was charged with the murder of Kinniburgh in November 2015. In his statement, witness P has described a number of statements made to him by Blewitt, implicating both Blewitt and the accused in the killing of Kinniburgh. Witness P also states that the accused himself made admissions to him of his involvement in the offence.
Before witness P made his statement to Victoria Police, he made an unsigned statement on 22 June 2015 or 23 June 2015, in which he stated:
I am making this statement of my own free will on the understanding that this statement will be used for the purpose of an indemnity application. I have been further informed and understand that none of the material contained in this statement may be used as evidence for the purposes of any criminal proceedings against me.
Subsequently, on 12 March 2016, witness P was provided with an indemnity pursuant to s 32 of the Criminal Procedure Act 1986 of New South Wales, indemnifying him from prosecution in respect of the offence of specially aggravated break and enter with the intent to steal at the Yarrawonga and Border Golf Club on 13 April 2004 and any associated offence. The indemnity was granted on conditions, which included that witness P actively cooperate in criminal proceedings pending against the accused for involvement in that offence, and also in the murder of Kinniburgh.
The subpoenas
In their original form, the two subpoenas were couched in very broad terms. Counsel for the accused had narrowed the subpoenas to seek the following documents:
1.Any document or thing, including but not limited to statements made by Witness P, telephone intercepts police notes and statements, surveillance logs and records concerning the nature and extent of Witness P’s relationship and interaction with Blewitt and the Accused after the death of Graham Kinniburgh.
2.Any document or thing, including but not limited to telephone intercepts, police notes, statements, correspondence, surveillance logs and records concerning or related to Witness P’s arrangement for an indemnity against prosecution in NSW.
3.Any document or thing, including but not limited to telephone intercepts, police notes, statements, surveillance logs and records concerning the nature and extent of the Accused’s interaction with Blewitt after the death of Graham Kinniburgh.
In submissions before me, senior counsel for the applicant outlined the forensic purposes for which the accused sought to access to those documents. In doing so, counsel somewhat refined and qualified the ambit of the three categories of documents that had been outlined above.
In essence, counsel submitted that the documents, now sought pursuant to the subpoenas, were important because they might provide appropriate material upon which, at the conclusion of the trial, counsel for the accused would be able to seek a direction from me as to the potential unreliability of witness P pursuant to s 165 of the Evidence Act 2008 (‘the Act’). In essence, counsel submitted that the documents be relevant for that purpose in three particular aspects.
First, counsel submitted that the accused was entitled to documents that might illuminate the nature of the allegations made against witness P as to his involvement in the aggravated burglary at Yarrawonga on 13 April 2004 and as to the circumstances of that offence. Counsel submitted that those matters were important, because they might expose the benefit that witness P obtained in exchange for his cooperation with the authorities in the present proceedings and in other proceedings against the applicant.
Secondly, it was contended that it might be inferred that there was a relationship between the aggravated burglary at Yarrawonga, on 13 April 2004, and the circumstance that the last occasion upon which Blewitt was seen was on the preceding day, 12 April 2004. In particular, it was submitted that documents, that demonstrate that witness P was in possession of knowledge of, or was suspected by the police of being involved in, Blewitt’s disappearance and death, are relevant to the question whether witness P has obtained a benefit for providing information or cooperation in the present matter.
Thirdly, counsel submitted that the police have failed to produce documents that relate to the circumstances in which witness P came to provide the draft unsigned statement, and subsequently the signed statement, to Victoria Police, which is the basis of his evidence in this case. In that respect, counsel has pointed out that the notes of both Detective Sergeant Morse and Detective Schalken, relating to those matters, have been provided to the defence in a heavily redacted form.
The grounds of objection
The objection to the production of the documents sought by the subpoena, or to some of those documents in an unredacted form, on the ground of public interest immunity, is supported by two affidavits sworn by Detective Sergeant Sara Morse, of Purana Taskforce. The first affidavit is an ‘open’ affidavit. The second affidavit is a ‘confidential’ affidavit. I have directed that the contents of that affidavit not be disclosed to any person, including the accused, other than by further order by a judge of this Court.
In the open affidavit, Sergeant Morse deposes that she has identified and produced to the court seven documents falling within the scope of the subpoena directed to Victoria Police. Of those documents, the Victoria Police objects to the production of three documents, comprising witness statements, in their entirety, to the production of three documents, comprising information reports, in other than a redacted form, and to the production of a document containing call charge records in an unredacted form. In addition, Victoria Police has objected, on the grounds of public interest immunity, to the production of material that it has received in confidence from another agency.
In the open affidavit, Sergeant Morse states that the public interest immunity is claimed in respect of the witness statements because disclosure would reveal the identity of the persons who provided the information in confidence, and would expose those persons to a risk of intimidation or physical harm. Sergeant Morse also deposes that each of the information reports contain information given to Victoria Police in confidence by persons, who only provided that information on the basis that they would not be identified, or their assistance to police would not be made known to anyone. Such persons provide a valuable source of intelligence, and if members of the police cannot provide such persons with a reliable assurance that their identities would not be disclosed, those sources of information would dry up. In addition, each of the information reports, produced pursuant to the subpoena, records assessments by police that the value of the information contained in the report, and disclosure of that information would inhibit the capacity of police members, in future reports, to be absolutely candid in recording such assessments, and might alert persons of interest to Victoria Police of important information relating to investigations relating to them.
In her confidential affidavit, Sergeant Morse has elaborated on the matters contained in her open affidavit. The confidential affidavit was not to be made available to counsel for the accused until I had an opportunity to read and consider it. Having done so, I do not consider it necessary for counsel for the accused to have had access to the affidavit. Further, I accept the submission made by leading counsel for Victoria Police that counsel for the accused might become compromised if they were provided with the confidential affidavit.
Counsel for the Chief Commissioner of New South Wales police informed me that the subpoena, addressed to his client, required production of the same seven documents, together with other documents. Insofar as it applies to those seven documents, counsel adopted the matters put on behalf of the Victorian Chief Commissioner of Police. Counsel for the New South Wales Police Commissioner advised me that he is currently having discussions with counsel for the accused in order to attempt to resolve any other issues relating to the subpoena addressed to his client.
Principles concerning Public Interest Immunity
Section 130 of the Act provides for the circumstances under which the public interest immunity claim may be made. It provides:
130 Exclusion of evidence of matters of state
(1)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.
(2)The court may give such a direction either on its own initiative or on the application of any person (whether or not the person is a party).
(3)In deciding whether to give such a direction, the court may inform itself in any way it thinks fit.
(4)Without limiting the circumstances in which information or a document may be taken for the purposes 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—
(a)prejudice the security, defence or international relations of Australia; or
(b)damage relations between the Commonwealth and a State or between 2 or more States; or
(c)prejudice the prevention, investigation or prosecution of an offence; or
(d)prejudice the prevention or investigation of, or the conduct of proceedings for recovery of civil penalties brought with respect to, other contraventions of the law; or
(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; or
(f)prejudice the proper functioning of the government of the Commonwealth or a State.
(5)Without limiting the matters that the court may take into account for the purposes of subsection (1), it is to take into account the following matters—
(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.
(6)A reference in this section to a State includes a reference to a Territory.
Section 130(1) relates to the admission of evidence, and to the application of the privilege at that stage of the proceeding. However, s 131A has the effect that the provisions of s 130 also apply to the various forms of compulsory disclosure material to a court, such as the production of documents in response to a subpoena.
Section 130 of the Act reflects, to a substantial extent, the common law principles governing public interest immunity; Ryan v State of Victoria.[1] For the purposes of this ruling, those principles can be stated shortly.
[1][2015] VSCA 353 [58] (‘Ryan’).
A claim for public interest immunity is not conclusive. It is a matter for the court to decide whether the claim is of sufficient moment to override the interests of the party, seeking the information or document; Sankey v Whitlam;[2]Alister v The Queen.[3] A party, that asserts a claim of public interest immunity to protect a document or information from disclosure, is required to identify, with precision, the basis upon which it is claimed that the information is sensitive, and must support that claim by appropriate evidence; State of Victoria v Brazel;[4] State of Victoria v Ryan;[5] Ahmet v Chief Commissioner of Police.[6]
[2](1978) 142 CLR 1, 59 (Stephen J).
[3](1984) 154 CLR 404, 412–13 (Gibbs CJ) (‘Alister’).
[4](2008) 19 VR 553, 574–5 [68] (‘Brazel’).
[5]Ryan [2015] VSCA 353 [55].
[6][2014] VSCA 265, [22] (‘Ahmet’).
Equally, the party, who seeks access to the document or information, must demonstrate a legitimate forensic purpose in disclosure of that document or information. It is sufficient that it is ‘on the cards’ that the documents may materially assist the defence; Alister.[7] However, the court will not permit a party to obtain such a document for the purposes of a fishing expedition; Alister.[8]
[7]Alister (1984) 154 CLR 404, 414 (Gibbs CJ).
[8]Ibid, 414 (Gibbs CJ), 438 (Wilson and Dawson JJ).
In assessing whether a claim of public interest immunity is to be upheld, the court must weigh the public interest that might be harmed by production of the document, against the public interest that the administration of justice not be frustrated by withholding of documents or information which might be relevant to the litigation before the court. The court must decide whether the public interest, that requires that the document not be produced, outweighs the public interest that a court of justice should not be denied access to the relevant evidence; Sankey v Whitlam;[9] Alister.[10] In that balancing exercise, where the case involves serious criminal charges, significant weight is given to the consideration that the information, sought to be protected, might be relevant to the establishment of the innocence of the accused; Sankey v Whitlam;[11] Alister;[12] D v National Society for the Prevention of Cruelty to Children.[13] In that respect, it is important to bear in mind that counsel for the defence is, ordinarily, in a significantly better position than a judge to assess the relevance and significance of the information that is sought to be protected. In particular, that information might direct counsel to, or assist counsel in, a material line of cross-examination of a key prosecution witness.[14]
[9](1978) 142 CLR 1, 38–9 (Gibbs ACJ), 59 (Stephen J).
[10](1984) 154 CLR 404, 412 (Gibbs CJ).
[11](1978) 142 CLR 1, 42 (Gibbs ACJ); 61–62 (Stephen J).
[12](1984) 154 CLR 404, 431 (Murphy J), 437–8 (Wilson and Dawson JJ).
[13][1978] AC 171, 232 (Lord Simon).
[14]R v Spizzirri [2001] 2 Qd R 686, 694 (Pincus JA); R v Mokbel (Ruling No 1)[2005] VSC 410, [71] (Gillard J).
Section 130(5)(e) of the Act recognises the interests of the state in protecting the identity of police informers. The rationale for that form of public interest immunity is that, if it were not extended, sources of information would dry up and the prevention and detection of crime would be thereby compromised; Jarvie & Anor v The Magistrates’ Court at Brunswick;[15] R v Smith;[16] D v National Society for the Prevention of Cruelty to Children.[17] It is for that reason that the identity of a police informer should, ordinarily, only be disclosed if there is good reason to think that disclosure may be of some real or substantial assistance to the accused.[18]
[15][1995] 1 VR 84, 88.
[16](1996) 86 A Crim R 308, 311.
[17][1978] AC 171, 218.
[18][1995] 1 VR 84, 90
The distinction between a class claim and a contents claim is preserved by s 130 of the Act; Ryan;[19] Ahmet.[20] A heavy onus lies on the party seeking to establish the existence of the particular class claim; Sankey v Whitlam.[21] The characterisation of a document as falling within a recognised ‘class’ does not render that document absolutely immune from production; the court must still balance the competing interest, in the protection of that class of documents, with the public interest in the administration of justice; The Commonwealth of Australia v Northern Land Council;[22] Sankey v Whitlam.[23]
[19][2015] VSCA 353 [67].
[20][2014] VSCA 265 [20] (Nettle JA, Sloss AJA).
[21](1978) 142 CLR 1, 62–3 (Stephen J).
[22](1993) 176 CLR 604, 616–17.
[23]43 (Gibbs ACJ), 63–4 (Stephen J), 98–9 (Mason J).
Procedure
In order to determine the claims made on behalf of Victoria Police, and the New South Wales Police Commissioner, for public interest immunity, I first heard argument in open court. For that purpose, as I have stated, I had read both affidavits deposed by Detective Sergeant Morse. I also read the documents that were produced in respect to the court on a confidential basis. I then heard further submissions in a closed court, in which the legal representatives of both police commissioners, and the prosecution, were present. I requested that the prosecution remain present, because it seemed to me that at least one of the documents, in respect to which public interest immunity was claimed, was a document which otherwise the prosecution would be obliged to provide to the defence in fulfilment of its duty of disclosure.[24]
[24]See R v Garofalo [1999] 2 VR 625, 631–7; Mallard v R (2005) 224 CLR 125, 133 and following; Grey v R (2001) 184 ALR 593.
In the course of the closed session, consideration was given to the question of the production to the court of the documents of the ‘agency’ that was referred to in the open affidavit, and described in the confidential affidavit. Ultimately, it was considered that the most convenient course to adopt was that the prosecution should subpoena those documents from the agency, to enable the documents to be brought to the court. If the agency seeks to raise an objection to the production of those documents to the defence, that objection can be dealt with appropriately by hearing submissions from both the agency and the defence.
The documents
Pursuant to the principles that I have stated above, in considering the issue of public interest immunity, it is first necessary to determine whether the information, that is in dispute, might materially assist the defence in any relevant manner. Secondly, it is necessary to consider whether, if that information might be of assistance to the defence, the value of that information to the defence is outweighed by the public interest that is asserted.
As mentioned above, three of the documents, produced by the Victorian Police Chief Commissioner, are information reports. Copies of those documents have been provided to the defence in a heavily redacted form. Having carefully read each of those reports in an unredacted form, I do not consider that any of the information, which has been redacted, could materially assist the defence. In forming that view, I have been mindful of the principle that I have set out above, namely, that defence counsel is, no doubt, in a better position than myself to assess the potential value and relevance of the information that has not been disclosed in the documents provided to the accused. Nevertheless, and being fully mindful of that limitation, I have formed the view that I have stated, namely, that I do not consider that the information could be of material assistance to the defence.
In that connection, in open session, senior counsel for the accused referred, specifically, to a reference to a person called ‘Ridge’ on the first page of the information report number INT 15 IR 790821. In his statement, witness P refers to the fact that he and others would borrow Mr Ridge’s green Hyundai vehicle. That evidence is relevant because two eye witnesses to the killing of Kinniburgh have stated that they saw a vehicle leaving the scene that they identified as a green Hyundai. Bearing that matter in mind, I do not consider that any of the redacted part of page 1 of the report (or any other redacted part of that report) could be relevant to that issue, or to any related issue in the trial. If, contrary to that view, there were any relevance of the information that was redacted, it would be peripheral and quite indirect. I am satisfied that disclosure of the information, that has been redacted, could well lead to identification of the confidential source of the information. In those circumstances, any possible value of that information to the accused is significantly outweighed by the public interest in protecting the identity of that source of information.
As I stated, having read the information reports carefully, I have been unable to discern any other aspect of the parts, that have been redacted, that could be of any assistance to the defence, particularly in respect of the forensic purposes for which the information is sought. On the other hand, disclosure of the redacted information could enable the accused or others to ascertain the existence or identity of the confidential sources of the information contained in those reports. In those circumstances, any value of the information, that has been redacted, to the defence, is significantly outweighed by the public interest in protecting the confidentiality of the sources of the information. I shall therefore not direct any further disclosure of the three information reports.
The next document relates to call charge records. The Victorian Police Chief Commissioner has produced a document, derived from those records, setting out telephone contacts between witness P and the accused after Mr Kinniburgh’s death. The defence does not take issue with the production of that document. However, the document did not record the number of the mobile telephone then used by witness P. Counsel for the accused submitted that the particular number of that mobile telephone might be relevant, because, if the accused’s legal representatives were informed of it, they might be able to identify other relevant contacts between witness P and other persons relevant to the case at that time. After a discussion with counsel, it was agreed that the telephone number of witness P would be disclosed to the legal representatives of the accused, upon those representatives giving to this Court an undertaking not to disclose that information to any other person, including the accused.
The third category of documents, produced pursuant to the subpoena, are three witness statements made by individuals to the New South Wales police. For the purposes of reference, the statements were each numbered as follows, namely, statement No 5 (dated 15 January 2015), statement No 6 (dated 27 May 2015), and statement No 7 (dated 13 April 2004).
Having read those statements in their entirety, I do not consider that statements number 5 and 7 could materially assist the defence in this case. Those documents are relevant to the aggravated burglary at Mulwala, and to the disappearance of Blewitt on the evening of that offence. However, they would not, in my view, advance the forensic purpose identified by senior counsel for the accused, namely, by exposing the benefit that witness P attained in exchange for his cooperation with the authorities in the present proceeding, and in other proceedings. On the other hand, disclosure of those documents would reveal sources of confidential information provided to New South Wales police which, at this stage, remain confidential. In those circumstances, the public interest in preserving the confidentiality of that information, and in protecting the sources of that information, significantly outweighs any possible forensic value of that information to the defence in the present case.
On the other hand, the statement identified as document No 6 is of direct relevance to the proceeding. It comprises a statement made to New South Wales police by witness P on 27 May 2015. The accused in this case has been provided with a document by counsel for the New South Wales police stating that witness P has made such a statement, and providing a brief precise of the contents of the statement. In those circumstances, obviously, the fact that witness P has made such a statement is no longer confidential.
The contents of the statement by witness P to New South Wales police are directly relevant to the purpose outlined by senior counsel for the accused, namely, the circumstances in which witness P made a statement to the Victorian police concerning the death of Graham Kinniburgh.
The statement by witness P to the New South Wales police was an induced statement, made for the express purpose of seeking an indemnity from prosecution for what was described in the statement as ‘the matter’ that witness P was then currently charged with in New South Wales. It is clear from evidence so far adduced on a voir dire, before me, that that charge was in respect of the offence of specially aggravated break and enter, with the intent to steal, at the Yarrawonga and Border Golf Club on 13 April 2004. As already mentioned, on 12 March 2016, the Attorney-General of New South Wales signed an indemnity in favour of witness P in respect of that charge. Further, as already mentioned, it was a condition of that indemnity that witness P actively cooperate in criminal proceedings pending against the accused for the murder of Graham Kinniburgh.
It is in that context that on 22 June 2015 witness P provided the draft unsigned statement to Victoria Police concerning the murder of Kinniburgh, on the understanding that the statement would be used for the purpose of an indemnity application. There is no indication in the materials before me that witness P required an indemnity in respect of any charges in Victoria. It might therefore be inferred that the indemnity application, referred to in the draft statement, was the application made to the New South Wales Attorney-General. Less than four weeks later, on 15 July 2015, witness P made the signed statement which is the basis of the evidence that is sought to be adduced from him in the current proceeding.
In those circumstances, the statement made by witness P to New South Wales police is clearly relevant to the circumstances in which he came to make a statement to Victoria Police concerning the killing of Graham Kinniburgh. In particular, the New South Wales statement sheds light on the potential benefit to witness P from his cooperation with Victoria Police in respect of the prosecution of the accused for the murder of Kinniburgh. As such, the New South Wales statement is directly relevant to one of the legitimate forensic purposes outlined by counsel for the accused.
As I have already mentioned, the accused has been furnished with a document (referred to as a ‘fact sheet’), produced by the New South Wales police, which contains a summary of the contents of the statement made by witness P to New South Wales police. Having read the statement made by witness P to New South Wales police, it is clear that any confidential quality of that statement has, effectively, been revealed to the accused by the provision to him of the summary.
Counsel for Victoria Police submitted that, nevertheless, any disclosure of the statement to the defence should exclude the last eight paragraphs, which relate to matters that occurred subsequent to the aggravated burglary. However, the summary provided by New South Wales police to the defence in this case contains a short precise of those paragraphs. In any event, subject to one matter, there is nothing contained in those paragraphs which would support the application of the principles of public interest immunity.
On the other hand, I consider that the contents of those sections of the statement provided by witness P to the New South Wales police are material to the matters raised by the accused’s counsel, and in particular, to the ability of counsel to effectively cross-examine witness P about his involvement in the aggravated burglary, and the sequelae to that burglary, as a basis for illuminating the benefit gained by witness P for cooperating with Victoria Police in the current matter. In those circumstances, the interests of the accused in having access to the statement, in its entirety, outweigh any residual public interest that might otherwise have resided in it.
The statement made by witness P to New South Wales police does refer to a number of persons by name. In the course of submissions in camera, counsel for Victoria Police provided to me a document redacting each of those names. The names of those persons have not been revealed to the accused in the summary provided to him by New South Wales police. The affidavit material satisfies me that there is a public interest in not disclosing those names (other than the name of witness P), particularly in order to protect the persons referred to from any potential intimidation or interference. On the other hand, I do not consider that the redaction of those names, from the statement, would materially diminish the utility of the statement to the defence for the purposes for which it is sought.
Accordingly, I shall direct that the Chief Commissioner of Victoria Police provide to the accused a copy of the statement made by witness P to New South Wales police dated 27 May 2015, redacted in the manner contained in the document that was provided to me in the course of argument (except for the redactions of the name and signature of witness P).
3
9
0