Director of Public Prosecutions v Radovilsky
[2021] VCC 420
•12 March 2021, revised 15 April 2021 to confirm redacted version has been revised, is not restricted and is suitable for publication. Revised 15 March 2021 by substituting correct date of ruling, and correcting the description of the passages to be redacted in paragraph 9 of the Annexure.
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-02232
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL RADOVILSKY |
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| JUDGE: | HER HONOUR JUDGE HAMPEL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 7 December 2020 |
| DATE OF RULING: | 12 March 2021, revised 15 April 2021 to confirm redacted version has been revised, is not restricted and is suitable for publication. Revised 15 March 2021 by substituting correct date of ruling, and correcting the description of the passages to be redacted in paragraph 9 of the Annexure. |
| CASE MAY BE CITED AS: | DPP v Radovilsky |
| MEDIUM NEUTRAL CITATION: | [2021] VCC 420 |
RULING
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Subject:
Catchwords: Public Interest Immunity – documents sought under subpoena – legitimate forensic purpose test – Public interest in protecting informers
– Public interest in disclosure of information which may assist a person in their defence.
Legislation Cited: Evidence Act 2008, Jury Directions Act 2015, Criminal Procedure Act
2009, Jury Directions Act 2015
Cases Cited: Ruling:
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| APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms Cara Foot | Office of Public Prosecutions |
For the Accused | Ms Felicity Fox | RKL Lawyers |
| For the Chief Commissioner of Victoria Police | Ms Kay Chan | Victorian Government Solicitor’s Office |
COUNTY COURT OF VICTORIA
250 William Street, Melbourne
HER HONOUR:
Introduction
1The accused is charged with multiple charges of rape, related charges of administering an intoxicating substance for a sexual purpose and make threat to kill. For a period after he was charged, the accused and Nektario Zafiratos were held on remand in the same unit at Ravenhall prison. Mr Zafiratos has since made two statements, in which he details admissions he says were made by the accused to him at Ravenhall. The prosecution has given notice it intends to rely on the evidence of Mr Zafiratos at trial.
2On 19 February 2020 the accused, through his lawyers issued a subpoena directed to the Chief Commissioner of police seeking the production of “all briefs, prepared against Mr Nektario Zafiratos whether finished or pending; all correspondence between Victoria Police and Corrections regarding Nektario Zafiratos; copies of all documents, material and things held by Police in regard to Nektario Zafiratos as an accused, or suspect, complainant or informer whether registered or unregistered”.
3No challenge is made to the contention, on behalf of the Chief Commissioner that all documents but for any “documents, material and things held by police in regard to [Mr Z] as an … informer whether registered or unregistered” have been produced.
4The Chief Commissioner has applied for a ruling that any information as to the existence or non-existence of any “documents, material and things held by police in regard to [Mr Z] as an … informer whether registered or unregistered” is immune from disclosure on the ground of public interest immunity.
Closed Court hearing
5On the application of the Chief Commissioner, I made closed court and suppression orders at the commencement of the hearing of the Public Interest
Immunity application. The effect of those orders was not only to prevent publication of any report of the hearing, but also, after hearing preliminary submissions from counsel for the accused and the Director of Public Prosecutions, excluding them from that part of the hearing where the Chief Commissioner’s counsel made submissions in support of the claimed immunity. The orders also prevented all persons, including the accused and Director of Public Prosecutions and their legal advisers from accessing the materials filed by the Chief Commissioner in support of the Public Interest Immunity application.
6In support of the claim for Public Interest Immunity, the Chief Commissioner filed and relied on comprehensive confidential written submissions, and an affidavit of Detective Acting Superintendent Bradley Nichols sworn 4 December 2020, which had annexed to it the materials respect of which Public Interest Immunity was claimed.
7In his affidavit, Detective Nichols requested that the contents of the affidavit remain confidential. He deposed he believed disclosure of the materials would
·risk serious injury or death to Mr Zafiratos;
·limit the effectiveness of future investigations;
·cause reputational damage to Victoria Police regarding the handling of sensitive information; and
·discourage or prevent members of the public from providing confidential information to police.
8He requested the opportunity to consider applying to withdraw the affidavit and exhibits, or to apply for redaction of passages of the ruling based on the confidential materials, if the court was considering disclosing the content of them.
9For the reasons that follow, I have determined that the claim for Public Interest Immunity, based on the claim disclosure would enable a person to ascertain the existence or identity of a confidential source of information fails. A draft of these reasons was provided to the legal representatives of the Chief Commissioner for the purposes of:
·affording an opportunity to be heard on the foreshadowed application to withdraw the affidavit and exhibits;
·making submission on whether any passages from the submissions, affidavit or exhibits referred to in these reasons should be redacted.
Further submissions from the Chief Commissioner
10Counsel for the Chief Commissioner (on this occasion, Mr Freckelton QC with Ms Chan) filed helpful and comprehensive submissions addressing the matters on which I had invited submissions. It is convenient to refer to, and incorporate my ruling on their submissions in relation to confidentiality of the affidavit and submissions, and proposed redactions from these reasons here, before returning to the reasons as expressed in the draft provided to the Chief Commissioner. I attach as an annexure to these reasons, my ruling on the submissions in relation to redactions from the subpoenaed materials.
Preserving the confidentiality of the affidavit and submissions
11Counsel for the Chief Commissioner requested the confidential affidavit and submissions filed in support of the Public Interest Immunity claim, and the supplementary submissions and annexures filed in response to the provision of the draft reasons be returned to the Chief Commissioner’s legal representatives, and withdrawn from the court file. They submitted return of the materials was “a logical extension of the established practice that a confidential affidavit may be tendered to a court to explain the basis upon which Public Interest Immunity is claimed, only be seen by the court.” They drew my attention to Gillard J’s Ruling
No 16 in R v Mokbel,1 which referenced an unreported 1982 decision of the NSW Court of Appeal2 and a 1989 decision of the Federal Court3. In the Mokbel ruling, Gillard J granted leave to withdraw an affidavit, tendered under claim of confidentiality, from the file, although he expressed the view such a practice should only be adopted in an extreme case. By contrast, in R v Benbrika (Ruling no 3)4 as noted by the submissions, Bongiorno J directed the confidential affidavit remain on file, with safeguards to protect confidentiality.
12Counsel for the Chief Commissioner noted those authorities did not directly address the question of whether accepting the ex parte tender of material for the judge to consider in determining a Public Interest Immunity claim extends to returning that confidential material once the claim is determined. They submitted that once a court had accepted an issue of Public Interest Immunity had been raised and it had been determined the parties should be excluded from the substantive Public Interest Immunity hearing, it was difficult to identify any further reason or necessity for allowing the material filed in support of the application to remain on the court file, where it could be accessed by prosecution, defence or even third parties.
13I disagree. In my view, the starting position is that any material filed and relied on in support of an application should remain on the court file. Although a claim of Public Interest Immunity had been raised, and constrained by authority, I accepted the confidential tender of the materials relied on and excluded the parties from the hearing, it does not follow that the material relied on should be removed from the court record. Particularly where, as here, after the closed court hearing, and considering the contents of the confidential affidavit and submissions, I rejected the claim.
[2005] VSC 410.
R v Beibic 27 May 1982.
National Crime Authority v Gould (1989) 23 FCR 191.
[2007] VSC 283.
14The Chief Commissioner’s counsel submit the affidavit and submissions reveal information in relation to internal police methodology and intelligence that travels beyond information relevant to this proceeding. They submit disclosure would undermine the efficacy of those methods and tactics. In my view, any well founded concerns as to the risk of dissemination of the content of the affidavit and submissions can be met by following the practice adopted by the Court of Appeal in Madafferi v R5and Zirilli v R6. That is, by directing the transcript of the confidential hearing, and the materials filed be sealed, and not made accessible to the public at large, or even to the parties, except by order of the court, and on notice to the Chief Commissioner. That in my view, balances the legitimate need to maintain confidentiality in respect of information relating to internal police methodology and intelligence, with maintaining curial control over materials filed and relied on in support of a largely unsuccessful application to protect information from disclosure on the basis of Public Interest Immunity, in order to ensure a person with a legitimate interest in accessing the materials may, if granted leave by the court to inspect, do so.
15In counsel for the Chief Commissioner’s submission, they characterised the approach of the Court of Appeal in Madafferi and Zirilli, as one of publishing reasons for decision that disclosed the existence and “[basic] assertions” of the confidential affidavits relied on in general terms, without citing sensitive detail. In the draft reasons provided to the Chief Commissioner, I had sought to adopt the same approach. That the Chief Commissioner has sought the limited redactions and “amendments” he has indicates an acceptance I have achieved that aim.
16The confidentiality directions in relation to the materials filed by the Chief Commissioner will also extend to the unredacted version of these reasons.
[2021] VSCA 1.
[2021] VSCA 2.
Proposed redactions from reasons
17At various passages of my reasons I refer to Mr Zafiratos providing information about other prisoners. It was submitted information was provided in relation to two prisoners only (Mr Radovilsky and Mr Harrison), and the reasons should accurately reflect that. It was submitted that the risk to safety of Mr Zafiratos was increased if it were thought, incorrectly, he had informed on more than the two named prisoners. I do not propose to amend the references as requested.
18[Redacted].
19I decline to redact what was paragraph [76] in the draft provided to the Chief Commissioner (now paragraph [89]) on the basis it implies Mr Zafiratos was a human source. In my view, it is an accurate summary of the evidence relied on. I do not consider that on a fair reading, that implication is open.
20I decline to redact the identified references to the Chief Commissioner’s policy in relation to confirmation or denial a person is an informer. Despite the submissions the impugned passages disclosed detail beyond what is already in the public domain, I consider they go no further than the references to the submissions made on behalf of the Chief Commissioner in respect of the policy and the reasons for it referred to by the Court of Appeal in Madafferi, as cited in my reasons.
21I decline to redact the name of the deponent of the affidavit relied on in this matter. I note in Madafferi and Zirilli, the court did not redact the names of the deponents, in similar circumstances. Nor, for that matter, did Gillard J redact the name of Mr Ashton, the then authorised human source management deponent, in Mokbel.
22Before closing the court to hear oral submissions from counsel on behalf of the Chief Commissioner, counsel for the accused and the Director of Public Prosecutions expressed their discomfort in being denied the opportunity to view the materials filed by the Chief Commissioner in support of the claim of Public Interest Immunity, and to hear and respond to submissions made on behalf of the
Chief Commissioner. I shared their discomfort, but considered myself bound to accede to the Chief Commissioner’s application to deny them access to the evidence and submissions filed, and exclude them from the substantive Public Interest Immunity hearing.
23I was however, assisted by their general submissions about the principles governing determination of a claim of Public Interest Immunity, their articulation of the matters in issue in the trial, and the matters bearing on whether there was good reason to think that disclosure of information about Mr Zafiratos as an informer may be of substantial assistance to the Defence.
24Counsel for the Prosecution and Defence of course, had a better appreciation of the issues in the trial generally, and of issues relating to the credibility of Mr Zafiratos, than counsel for the Chief Commissioner.
The Charges and procedural history
25The events the subject of the charges are alleged to have occurred in May 2018. The Prosecution alleges the accused took advantage of the complainant, who was intoxicated, after she had been ejected from a bar. It is alleged he took her to his apartment, where he armed himself with a large knife. It is alleged he threatened to kill her, forced her to smoke ice, repeatedly raped her, handcuffed her to prevent her escape, demanded money from her to secure her safe release, and escorted her out of the apartment, in order for her to withdraw the money from an ATM to give him. Once outside, the complainant escaped, and a police investigation was commenced.
26Mr Radovilsky was arrested later that day. When interviewed, he admitted taking the complainant to his apartment, engaging in sexual activity with her, and providing her with ice. He said the complainant willingly went with him to his apartment, consented to the drug taking and not only consented to, but was the initiator of the sexual activity which then occurred. He admitted that he produced
a large knife, but denied threatening the complainant with it. He said he produced it in response to a conversation, initiated by the complainant about wanting to die, and her preferred way of dying. He admitted he handcuffed the complainant with cable ties, but said it was at her request. He said the complainant offered to give him money, and that they agreed he would accompany her to an ATM for that purpose, but that, once outside, she fled.
27Consistently with his account at interview, in his defence response, the accused accepted the complainant accompanied him to his apartment, maintained all sexual acts which occurred were consensual, and made a blanket denial of the offending as outlined in the prosecution opening. No application to depart from the defence response has been foreshadowed.
Mr Zafiratos’s foreshadowed evidence at trial
28Following his arrest and interview, the accused was charged and remanded in custody. Some months later, Mr Zafiratos was placed in the same unit at Ravenhall where the accused was being held. He was facing multiple charges of deception. Mr Zafiratos alleges that during the time they were held at Ravenhall the accused admitted he had seen the complainant in a bar, and spiked her drink with GHB, before approaching her outside the bar, taking her home, and drugging and raping her. Further, Mr Zafiratos alleges the accused told him he had, on previous occasions, spiked women’s drinks then raped them.
29The Prosecution has indicated it intends to rely on the evidence of Mr Zafiratos at the trial of the accused. The evidence of Mr Zafiratos goes to the central issue in the trial, namely whether the complainant consented to the sexual activity, and whether the other conduct alleged by her occurred. Evidence the accused admitted he drugged and raped the complainant, if accepted, provides independent support for the complainant’s account. It may be, of itself, capable of establishing the accused’s guilt of the charges to which the admissions relate. It clearly has the potential to significantly strengthen the Prosecution’s case.
30There is no other source of evidence that suggests the accused had seen the complainant earlier in the night and spiked her drink, or that he had previously drugged, then raped other women. If this evidence is admitted, in whole or part, it too has the potential to significantly strengthen the Prosecution’s case.
The foreshadowed challenge to the evidence of Mr Zafiratos by the defence
31The defence has foreshadowed a challenge to the truthfulness and reliability of the evidence of Mr Zafiratos. The truthfulness and reliability of Mr Zafiratos is critical to the acceptance of his evidence, that is to a jury accepting the accused made the admissions, and therefore to the evidence on which it is prepared to rely when considering whether it is satisfied beyond reasonable doubt of his guilt of the charges.
Relevant principles
32It is against this background that the claim of Public Interest Immunity is to be assessed.
33It was common ground, and uncontroversial, that it is for the party claiming Public Interest Immunity, here, the Chief Commissioner of police, to establish there is something to which a claim of public interest immunity attaches. If that is established, it is then for the party seeking production, here the accused, to establish a legitimate forensic purpose, or apparent relevance of the documents and materials sought. If a legitimate forensic purpose is established, then pursuant to s 130 of the Evidence Act 2008, it is for the court to determine whether the public interest in the production of the documents and materials is outweighed by the public interest in preserving secrecy or confidentiality.
Is there something to which a claim of Public Interest Immunity attaches?
34In his affidavit Acting Superintendent Nichols deposes it is Victoria Police policy, that police will not, unless “properly authorised” confirm or deny the existence or identity of an actual or potential human source.
35That qualification aside, he acknowledges there is material which falls within the description “all documents, materials and things held by police in regard to Mr Zafiratos as an informer, whether registered or unregistered” to which the claim of Public Interest Immunity attaches.
36Mr Nichols deposes that the annexures to his affidavit contain “all documents that contain information responsive to” this part of the subpoena.
37Exhibit BRN-1 is the full Interpose Record and Community Source Risk Assessment in relation to Mr Zafiratos. Public Interest Immunity is claimed over the whole record including the Risk Assessment.
38Mr Nichols deposes the Interpose Record reveals approval was sought by members of Victoria Police for registration of Mr Zafiratos as a human source, that he was not approved, and no intelligence was obtained or authorised for use or dissemination. That succinct summary may well reflect the outcome of the application for registration as a human source from a police operational perspective. However, the outcome is not determinative of the question of whether the Interpose Record falls within the description of “all documents materials and things held by Police in regard to Mr Zafiratos as an informer, whether registered or unregistered”. The rejection of the application to register Mr Zafiratos as an informer, and the assertion no information was obtained or authorised for use or dissemination does not retrospectively reclassify the content of the Interpose Record as one free of any information in regard to Mr Zafiratos as an informer.
39Despite the ultimate rejection of the application, the fact remains Mr Zafiratos asked, and members of Victoria Police applied for him to be registered as an informer. The application was supported by other members of Victoria Police. Mr Zafiratos did provide information, the nature and quality of which was relied on by members of Victoria Police in support of their application to register him. The information provided by him included the admissions attributed to Mr Radovilsky,
which ultimately were included in the statements Mr Zafiratos made and on which the prosecution intends to rely at Mr Radovilsky’s trial. Whilst it may be strictly correct to say, as the application to register him as an informer was rejected, the information he provided was not provided by a registered informer, it is misleading, if not disingenuous to assert no intelligence was obtained or authorised for use or dissemination. Despite the rejection of the application by members of Victoria Police to register Mr Zafiratos as an informer, Mr Zafiratos chose to provide information, not only about the accused, but also about other prisoners. The information he provided was used in criminal investigations. In particular, for use in Mr Radovilsky’s trial, and in support of a successful application to obtain a warrant to search for child pornography in relation to another person.
40Exhibit BRN-2 is the diary notes of Senior Constable McMullen, from the Victoria Police Joint Anti Child Exploitation Team (JACET) recording her meetings with Mr Zafiratos on five separate occasions. Public Interest Immunity is claimed over parts of the diary entries for a number of those meetings. Mr Nichols deposes that those entries disclose the fact that Mr Zafiratos discussed becoming, and was considered for registration as a human source.
41I have read the Interpose Record, and the diary notes. Not only do their names suggest they fall within the description “all documents, materials and things held by police in regard to Mr Zafiratos as an informer, whether registered or unregistered”, but their contents confirm that. I am satisfied that the Interpose Records and diary notes fall within the description of documents sought by the subpoena.
Is there a legitimate forensic purpose, or apparent relevance of the documents and materials sought?
42It is for the party seeking production, here the accused, to establish a legitimate forensic purpose, or apparent relevance of the documents and materials sought.
43Relevant evidence as defined by s 55 of the Evidence Act 2008 is “evidence that could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding.”
44In her submissions, Ms Chan, counsel for the Chief Commissioner helpfully set out a number of recent formulations of that test. Of particular assistance in this case were the following formulations:
45Apparent relevance is demonstrated in relation to an issue where the material sought could reasonably be expected to throw light on the issue in the proceeding and not simply where the material might permit a case to be made7. The documents sought should be reasonably likely to add in the end in some way or other to the relevant evidence in the case8. Reasonable likelihood is a different concept to reasonable possibility. It connotes a degree of certainty as to the material’s potential relevance that travels beyond the merely conjectural9. It is sufficient that it is “on the cards” that the document may materially assist the defence10.
46Establishment of a legitimate forensic purpose, or apparent relevance is, as counsel for the Chief Commissioner acknowledged, a difficult exercise for the defence, as they do not have access to the material over which Public Interest Immunity is claimed. The defence cannot refer to the actual content of the documents when submitting there is a legitimate forensic purpose in seeking access to the documents sought, or that they have apparent relevance to an issue in the trial. The defence is, of necessity, restricted to broad or general assertions about legitimate forensic purpose or apparent relevance.
47Counsel for the Chief Commissioner submitted, even after making allowance for the limitations imposed on the defence in advancing submissions about the
Dorajay Pty Ltd v Aristocrat Leisure Ltd [2005] FCA 588 at [17].
Sportsbet Pty Ltd v New South Wales (No 9) [2010] FCA 31 at [3].
Ibid at [4].
Director of Public Prosecutions v Asling (Ruling No 1) [2017] VSC 37 at [24].
potential relevance of material they could not inspect, that the defence had not identified the purpose or relevance of the material sought.
48Despite the submission the defence had not established the potential relevance of the material sought, Ms Chan also submitted that fulsome disclosure of material responsive to all categories of the subpoena bearing directly on the issue of Mr Zafiratos’s credibility had already been made. It is no answer to a claim of potential relevance that other material bearing on the issue has already been disclosed.
49It is no understatement to say there is a considerable amount of material which has already been obtained by the defence which potentially bears on the credibility of Mr Zafiratos. That material reveals:
·Mr Zafiratos has a substantial criminal history, and has served a number of terms of imprisonment, mainly for deception and related offences;
·Mr Zafiratos is a prison informer, who has provided information in relation to two other prisoners, in addition to the accused;
·Mr Zafiratos was questioned as a suspect whilst in custody in relation to allegations of rape and deception;
·Mr Zafiratos made the formal statement on which the prosecution intends to rely on at the accused’s trial, on the same day he was advised he would not be charged with any offences in relation to those allegations of rape and deception;
·Mr Zafiratos asked Victoria police to register him as an informer, in relation to the information he had provided about the accused, as well as information he had provided about other prisoners;
·Mr Zafiratos offered to provide, and assist in the soliciting of further admissions or evidence from the accused and other prisoners or former prisoners with whom he had been housed;
·Whilst on remand, and before making his formal statement detailing the admissions attributed to the accused, Mr Zafiratos was moved from Ravenhall to Hopkins, a prison generally used to hold sex offenders (which he was not) and protection prisoners;
·Whilst in custody, at both Ravenhall and Hopkins, Mr Zafiratos was a “peer listener”, a role apparently intended to encourage other prisoners to share confidences;
·Letters of Support were provided by Victoria Police to the court in relation to Mr Zafiratos’s informing in respect of the accused and one other prisoner when he was ultimately sentenced for the offences he was being held on at the time he alleges the accused made his admissions.
·The Letters of Support specifically noted that Mr Zafiratos said he was motivated to assist not only because of the seriousness of the conduct of the accused and the other prisoner, but also in order to obtain a sentencing discount in relation to his pending charges.
·the Letters of Support and other disclosed material reveals police assessed Mr Zafiratos’s genuineness in providing information against the accused and Mr Harrison as low.
50It follows from the acceptance Mr Zafiratos’s credibility is an issue in the trial, that material bearing on his credibility is potentially relevant. The information detailed by Ms Chan which I have set out above most of which emanated directly from Victoria Police records, has already been disclosed to the defence. It includes material revealing Mr Zafiratos had provided information about other prisoners,
offered to assist in gathering more information, and asked to be registered as an informer.
51The submission the defence has not established the potential relevance of the Interpose Report and diary notes relating to the application by members of Victoria Police to register Mr Zafiratos as an informer is inconsistent with the concession his credibility is an issue in the trial.
52Ms Chan submitted, however, that when the individual entries in the Interpose Report and diary notes were subjected to a close study, it became clear that, objectively, it was not on the cards, or reasonably likely the material might assist the defence. Having regard to the decisions of the Court of Appeal in Madafferi and Zirilli, delivered after argument had concluded, that is not the correct approach to the determination of potential relevance.
53After, the Court of Appeal delivered its decisions in Madafferi and Zirilli, I invited the parties, if they wished to do so to make submissions as to their application to this matter. Ms Chan, for the Chief Commissioner replied, advising:
“The Chief Commissioner does not intend to make further submissions as he considers that they will not add anything to the submissions made before her Honour in support of his Public Interest Immunity application in DPP v Radovilsky. The submissions made on behalf of the Chief Commissioner reflect the legal principles considered, and applied, by the Court of Appeal in the Madafferi and Zirilli decisions.
Insofar as there was disagreement between amici and the Chief Commissioner about legal principles in Madafferi and Zirilli, those points will have little, if any, bearing on her Honour’s consideration of the issues …”
54Ms Fox on behalf of the accused, still of course unaware of what was contained in the confidential submissions made on behalf of Chief Commissioner, or the affidavit and exhibits, directed my attention to the reference by the Court of Appeal in Zirilli to the authoritative statements by the High Court in Alister v The Queen11
Alister v The Queen (1984) 154 CLR 404.
in relation to the application of the “on the cards” test when considering whether the documents sought may support the defence of an accused person.
55In Zirilli, the Court of Appeal conveniently summarised the principles in Alister v The Queen12 in these terms:
[85] In his judgment, Gibbs CJ referred to the High Court’s decision in Sankey v Whitlam13as having established that when a party to litigation seeks the production of documents, and a Public Interest Immunity objection is taken, the Court is required to consider two conflicting aspects of the public interest. These were (a) whether harm would be done by the production of the documents, and (b) whether the administration of justice would be frustrated or impaired if the documents were withheld.14 The judge would then have to decide which of those two aspects predominated. The final step in this process, the balancing exercise, could only be taken when it appeared that both aspects of the public interest required consideration.
[86] With regard to the question whether a judge, faced with a claim of Public Interest Immunity, should inspect the relevant documents, Gibbs CJ said that the Court must attach special weight to the fact that the documents may support the defence of an accused person. His Honour said:
Although a mere ‘fishing’ expedition can never be allowed, it may be enough that it appears to be ‘on the cards’ that the documents will materially assist the defence. If, for example, it were known that an important witness for the Crown had given a report on the case to ASIO it would not be right to refuse disclosure simply because there were no grounds for thinking that the report could assist the accused.
[87] Justice Murphy agreed with the Chief Justice that the trial judge had erred in refusing to inspect the documents that had been subpoenaed in order to see whether they contained anything which might show that the case against the accused had been fabricated, or that might otherwise assist them in their defence, either directly or indirectly. It would be sufficient, in his Honour’s view, that the documents sought might point to the existence of other material which might assist.
56Questions of what might be relevant to the defence, specifically to the credibility of the witness cannot be determined by the opinion of the Chief Commissioner. Nor can what might be relevant to the defence be properly be assessed by a court called upon to determine a claim for Public Interest Immunity. In both Madafferi and Zirilli, the courts were at pains to point out that ultimately, once established,
Alister v The Queen (1984) 154 CLR 404, 412 (Gibbs CJ, Murphy J agreeing at 431).
Sankey v Whitlam (1978) 142 CLR 1; [1978] HCA 43.
R v Salem (1989) 16 NSWLR 14.
or if established that the material may be of substantial assistance to an applicant, it was for the legal advisers of the applicant to make an assessment of its utility15.
Potential unreliability of evidence of prison informers
57Having said that, it is relevant to the assessment of potential relevance, in my view, that Mr Zafiratos is properly characterised as a prison informer. That is, a prisoner who gives evidence of an oral confession or admission made by another prisoner16.
58The evidence of a prison informer is ‘of a kind that may be unreliable’17 for the purposes of s 31(d) of the Jury Directions Act 2015 (JDA). If a party requests a direction that the evidence of a prison informer may be unreliable, s 32 of the JDA requires a trial judge to give a warning about the unreliability of that evidence, unless there are good reasons for not doing so. Not surprisingly, the defence foreshadowed an intention of requesting an unreliable evidence warning in respect of the evidence of Mr Zafiratos.
59In Pollitt18, the High Court identified the reasons why a prison informer’s evidence is regarded as inherently unreliable. Specifically, that prison informers (if convicted criminals) are of bad character, that evidence of an oral confession or admission is easily concocted, that prisoners may have a motive to concoct evidence if they believe that, in return for giving evidence, they are going to receive a benefit in terms of sentence, treatment or release on parole, that the pressures of the prison environment may create a motive to concoct evidence, and the difficulty if not impossibility of corroborating an accused’s denial of a concocted confession or admission. The New South Wales Court of Appeal added to that list,
Madafferi v The Queen [2021] VSCA 1 at [108 – 110], Zirilli v The Queen [2021] VSCA 2 at [130 – 133].
Pollitt v R (1991) 174 CLR 558.
S 31(d) Jury Directions Act 2015.
Pollitt v R (1991) 174 CLR 558.
circumstances where a prison informer actually receives a benefit from giving evidence against an accused19.
60If the defence seeks an unreliable witness warning, they must identify the significant matters on which they rely to contend that the prison informer’s evidence is unreliable20. If the trial judge gives an unreliable evidence warning, they must warn the jury that the evidence may be unreliable, and warn of the need for caution in determining whether to accept the evidence and the weight to be given to it. Further, the trial judge must inform the jury of the significant matters identified by the requesting party which the judge considers may cause the evidence to be unreliable21.
61The requirement for the party requesting an unreliable evidence warning to identify the matters which may cause the evidence to be unreliable, and for the trial judge to identify for the jury the significant matters from those identified by the requesting party which the judge considers may cause the evidence to be a reliable is premised upon the requesting party (here the accused) having access to evidence and information would bear on the question of the particular prison informer’s unreliability. That is, it is not sufficient to rely upon the general understanding, informed by the development of the common law principles in relation to the potential unreliability of informers. The request by the accused and the directions given by the trial judge must be based on the matters relevant to the potential unreliability of the individual informer in the particular case.
62This requires the defence to be able to obtain evidence and information relevant, or potentially relevant to the content of the unreliability warning.
63In making my assessment of legitimate forensic purpose, I must have regard to the fact that the documents sought may support the defence of the accused. I am
R v Stewart (2001) NSWLR 301, R v Kanaan [2005] NSWCCA 109, R v Sullivan [2003] NSWCCA 100.
S 32 (2) Jury Directions Act 2015
S 32(2), s 32(3) Jury Directions Act 2015.
satisfied “it appears to be on the cards” the Interpose Record and the notes of Senior Constable McMullen in relation to the contacts with, and consideration of whether to register Mr Zafiratos as an informer will materially assist the defence. Once it is known, as it is here, that Mr Zafiratos had provided information to Victoria Police, disclosure cannot be refused because, in the opinion of the Chief Commissioner, or his delegate, Mr Nichols, the Interpose Record and diary notes would not assist the accused.
64I am satisfied the materials might assist the defence, either directly or indirectly. If not directly, they might point to the existence of other material which might assist, or might in combination with other material, assist the defence. As the accused is facing serious criminal charges, a more liberal approach to compelling the production of documents, to allow for their inspection is justified. Whether ultimately they will be of assistance, or capable of being used, will be a judgment call for the accused and his legal advisers. Once all available information is in their hands, forensic decisions can be made about the potential utility of the material.
65I am satisfied that there is a legitimate forensic purpose or apparent relevance for the information sought. The truthfulness and reliability of Mr Zafiratos are critical to the acceptance of his evidence the accused made the admissions attributed to him. Far from being conjectural or speculative, it is already revealed to the defence that Mr Zafiratos offered to provide information about the accused, and other prisoners, and asked to be registered as an informer. Mr Zafiratos’s motivation to offer information about the accused, the time at which he did, and the circumstances in which he did, are all matters capable of bearing on his truthfulness and reliability on the central issue of whether the accused made the admissions.
66Those circumstances include his offer to become an informer in relation to another prisoner as well, his decision to make a statement even when the application was rejected, and the time at which he first offered to provide information and make
a statement about the accused as well as the other prisoner. So, too, are the advantages he sought, including support for bail, a transfer to another prison, and Letters of Support on his own sentencing.
67I am also satisfied there is a legitimate forensic purpose or apparent relevance in inspecting the material sought to assess whether there is any relationship between the advantages Mr Zafiratos sought for himself by offering to inform, and his role of Mr Zafiratos as a peer listener,
68Applying the reasoning in Madafferi and Zirilli, to this case, I am satisfied it is clearly “on the cards” that the information sought may materially assist the defence, having regard to the information already disclosed. The defence is not, in these circumstances seeking access to material which might permit a case to be made. There is a degree of certainty as to the material’s potential relevance that travels beyond the merely conjectural. I am satisfied the documents sought are reasonably likely to add in the end in some way or other to the relevant evidence in the case. I am satisfied they could reasonably be expected to throw light on the issue of the truthfulness and reliability of the evidence of Mr Zafiratos as to the admissions said to have been made to him by the accused.
69I am satisfied given the nexus between the evidence proposed to be relied on from Mr Zafiratos, and his known request to be registered as an informer in relation to that information, it has a high degree of potential relevance to Mr Zafiratos’s credibility.
Is the public interest in compelling production of the information sought outweighed by the public interest in preserving secrecy or confidentiality of that information?
70By s 130(4)(e) of the Evidence Act 2008 information or a document is taken to relate to matters of state if adducing it as evidence would 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 the Commonwealth or a State.
71By s 131A, a request for the production of documents by subpoena is a disclosure requirement for the purposes of s 130.
72Section 130(1) gives a court the power to direct information or a document that relates to matters of state not be used as evidence if the public interest in admitting it into evidence is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document.
73In undertaking the balancing act, s 130 (5) requires a court to take into account
·the importance of the information or document in the proceeding;
·in a criminal proceeding, whether the party seeking to adduce evidence of the information or document is an accused of the prosecutor;
·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 proceeding;
·the likely effect of adducing evidence of information or document, and the means available to limit its publication;
·whether the substance of the information or document has already been published;
·in a criminal proceeding, where the party seeking to use evidence of the information or document is the accused, whether the direction is to be made subject to the condition that the prosecution the be stayed.
Defining the matter of state to which the claim of Public Interest Immunity attaches
74As noted above, s 130(4)(e) defines as a matter of state, information or a document which if adduced as evidence, would disclose, or enable a person to ascertain the
existence or identity of a confidential source of information. The Chief Commissioner’s submissions, in reliance of s 130(4)(e) were put on the basis of “whether the Chief Commissioner ought to be ordered by this court to deviate from his general policy of neither confirming nor denying whether any person has been assessed or considered for registration as a human source.”
75Consistently with that formulation the Chief Commissioner’s submissions had annexed to them a proposed order (not a recital or preamble) in the following terms:
“COURT ORDERS
Public Interest Immunity
1 The Court notes the general policy of the Chief Commissioner to neither confirm nor deny whether a particular person was considered for registration as a human source and orders the following information and documents are immune from disclosure and/or production on the ground of Public Interest Immunity
1.1The existence or non-existence of any “documents, material and things held by Police in regard to [Witness Z] as an… informer whether registered or unregistered” that is responsive to (3) of the Accused’s subpoena dated 19 February 2020.
1.2Submissions filed and evidence adduced in this application by the Chief Commissioner in support of orders made in respect of this Application on the question of public interest immunity including any information contained in and derived from the confidential affidavit of Detecting Acting Superintendent Bradley Nichols sworn on 4 December 2020;
1.3Recordings and transcripts of the hearing of this Application; and
1.4That part of the Court’s reasons for decision on the Application that in anyway discloses the confidential information in subparagraphs 1.1 to 1.3 above.”
76In his affidavit, Detecting Acting Superintendent Bradley Nichols deposed:
“It is the policy of Victoria Police that no officer may, without proper authorisation, confirm nor deny the existence or identity of a human source (actual or potential)22”.
A proposed form of order containing a similar recital was sought in Madafferi at [20]. Without directly criticising the form of order proposed, the Court formulated the test, as I have done here, by reference to s 130.
77At the commencement of her oral submissions, Ms Chan advised the Chief Commissioner abandoned the contention an assertion of the Chief Commissioner’s policy be included any order declaring information or documents are immune from disclosure and/or production. She did not however, abandon the contention, in her written submissions, the case was about whether the Chief Commissioner should be ordered by the court to deviate from his general policy.
78This case is not about whether the court should order the Chief Commissioner to deviate from a policy. Nor is it a vehicle for seeking curial approval of such a policy. It is about the application of s 130(1) and s 130(4)(e), namely whether the public interest in disclosure of information or a document which if adduced as evidence, would disclose, or enable a person to ascertain the existence or identity of a confidential source of information is outweighed by the public interest in preserving
secrecy or confidentiality in relation to the information or document.
The competing public interests
79In her submissions Ms Chan defined the competing public interests as:
·the public interest in maintaining confidence in the ability of police to protect avenues of information and intelligence including the ability of police to protect informers (whether actual or perceived); and
·the public interest in disclosing information which a person asserts may assist him in seeking to quash their conviction.
80The formulation of the second public interest consideration appears to adopt the formulation relied on in Madafferi and Zirilli where the claim of Public Interest Immunity arose in the context of an application under s 317 of the Criminal Procedure Act (CPA) for the production of documents for the purposes of prosecuting applications for leave to appeal against conviction. For the purposes of this application, clearly it should refer to the public interest in disclosing
information which a person asserts may assist him in his defence to criminal charges.
81I proceed on the basis the competing public interests involved in determining whether the public interest in disclosure of information or a document which if adduced as evidence, would disclose, or enable a person to ascertain the existence or identity of a confidential source of information is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document are:
·the public interest in maintaining confidence in the ability of police to protect avenues of information and intelligence including the ability of police to protect informers (whether actual or perceived); and
·the public interest in disclosing information which a person asserts may assist him in his defence to criminal charges.
82In her original submissions, Ms Chan submitted the balancing exercise undertaken at common law is imported into s 130 by the word “outweighed”. I prefer the formulation used by the court in Madafferi, namely “the construction of s 130 is informed by the common law”23, and its approval, in an appropriate case of the applicability of the observations of Basten JA in A-G NSW v Lipton24that the balancing exercise was not to be constrained by unexpressed rules derived from the general law.
83That cautionary note aside, the court in Madafferi and Zirilli cited with approval Tate JA’s summary in Ryan25 to which Ms Chan directed me of the considerations in addition to those contained in s 130(5). Relevantly for this case, they include whether non-disclosure would impede an accused’s right to a fair trial, the evidentiary value of the documents to the issues, whether ordering disclosure
Madafferi v The Queen [2021] VSCA 1 at [31].
Attorney General (NSW) v Lipton [2012] NSWCCA 156.
Ryan v State of Victoria [2015] VSCA 353 at [57].
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.
84Ms Chan also relied on the decision of the Court of Appeal in AB v CD and EF26, which, applying the formulation adopted in Jarvie and Another v the Magistrates’ Court of Victoria27, put test to be applied, when considering the public interest in disclosure of the identity of an informer “as requiring it to be demonstrated that there is good reason to think that disclosure… may be of substantial assistance to” the accused.
85In her response to the court’s invitation to make further submissions in light of the decisions of Madafferi and Zirilli, Ms Chan noted the court in Madafferi had followed the Jarvie formulation. Her original submissions therefore are on all fours with the formulation in Madafferi namely:
[42] It follows that the task of this Court in the Public Interest Immunity application is to balance the competing public interest considerations (the public interest in maintaining confidence in the ability of police to protect avenues of information and intelligence and the public interest in disclosing information that a person asserts may assist them in seeking to quash a conviction), having regard to whether there is good reason to think that the disclosure of the Public Interest Immunity documents (or any part of them) may provide substantial assistance to Madafferi in his application for leave to appeal and, if leave is granted, in his appeal.28
86Applied to this case, therefore, the task of this court is to balance the competing public interest considerations (the public interest in maintaining confidence in the ability of police to protect avenues of information and intelligence and the public interest in disclosing information that a person asserts may assist them in seeking to defending criminal charges), having regard to whether there is good reason to think that the disclosure of the Public Interest Immunity documents (or any part of them) may provide substantial assistance to the accused on his trial.
AB v CD and EF [2017] VSCA 338 at [58].
Jarvie and Another v the Magistrates’ Court of Victoria [1995] 1 VR 84 at [89] - [90].
87In Madafferi, the court went on to say:
[43] As a final matter, we observe that while the Court is required to balance the public interests which are engaged in the particular circumstances, the Court is only to balance those public interests that are genuinely engaged. A claim for public interest immunity must be ‘articulated with rigour and precision, and supported by evidence demonstrating the currency and sensitivity of the information, so as to constitute a compelling case for secrecy’.29 Insofar as it is appropriate to speak of an onus in this context, we affirm what was said by Kyrou J in Director of Public Prosecutions v Debono:
The onus lies upon the party seeking to prevent disclosure of information or a document to establish that the public interest in preserving the secrecy or confidentiality outweighs the public interest in producing that information or document30.
What public interests are said to be engaged?
88In his affidavit Mr Nichols relied on the following grounds:
·Risk to safety of [witness Z]
·Loss of informers and intelligence
·Handlers and controllers, police methodology and tactics
Evidence supporting the grounds relied on Risk to safety of [witness Z]
89Mr Nichols deposed that he believed disclosure of the Public Interest Immunity
material would compromise Mr Zafiratos’s safety. He relied not only on the concerns that had been expressed by Mr Zafiratos about his safety, but also on a more generalised concern about the likely risk to any prison informer from the prison population at large. He drew a distinction between an informer and a prisoner who is a witness. He emphasised the fact that in the case of a prisoner witness, whose identity is known to the accused, the evidence was confined to a specific matter or individual. By contrast, he deposed, being a source connotes a relationship between the source and police, perhaps over a protracted period, or
Victoria v Brazel (2008) 19 VR 553, 575 [68]; [2008] VSCA 37 (Maxwell P, Buchanan and Vincent JJA).
(2012) 225 A Crim R 585, 591 [28]; [2012] VSC 476.
involving a considerable amount of information. He referred, to the self interest an informer demonstrated by their cooperation with police which could be regarded as betraying the trust or confidence of associates.
90No doubt all this can, in the right case, cause grave concern for an informer’s safety. However, its application in this case is marginal.
91Mr Zafiratos is not the typical prisoner witness as described by Mr Nichols. He is a quintessential prison informer who removed his own cloak of anonymity once he chose to make statements about the accused and the other prisoner. In respect of both the accused and the other prisoner, the prosecution disclosure already reveals Mr Zafiratos offered to provide police with incriminating information he alleges they separately volunteered to him in custody. Further, they reveal Mr Zafiratos not only asked to be registered as an informer, but offered to facilitate an attempt to covertly record further admissions from the accused. A prisoner who is prepared to volunteer information another prisoner has made admissions, or to offer to assist to obtain further evidence is in a different category to a prisoner who gives an eyewitness account, or provides some other contemporaneous evidence which incriminates an accused.
92The provision of statements made by Mr Zafiratos for use in the trials of the accused and the other prisoner is not information protected from disclosure. Once the prosecution has provided Mr Zafiratos’s statements to an accused, and indicated its intention to rely on them at trial, there is nothing to stop his preparedness to become a prosecution witness, and inform on other prisoners being known to the broader prison population, or in the circles in which offenders move in the broader community. If there are risks to the safety of Mr Zafiratos as a person known to be a prison informer, they already exist.
93Mr Zafiratos is no longer in custody. There is no longer a risk of in-custody reprisal. Whatever risks of reprisal in the community Mr Zafiratos faces as a result his informing already exist, as a result of the disclosures already made to the defence.
Risk of loss of informers and intelligence
94There are sound reasons why a police force may adopt a policy never to confirm or deny whether a person is, or was considered for registration as an informer, unless authorised to do so. As noted, in his affidavit Acting Superintendent Nichols deposes to the policy of Victoria Police that police will not, unless “properly authorised” confirm or deny the existence or identity of an actual or potential human source. He notes the importance of claiming Public Interest Immunity even if the person about whom information is sought is not a human source, so as not to allow an inference to be drawn that if police do not deny a person is a human source, it must follow they are.
95This broad statement of principle must however, be considered in light of the circumstances of this case. Once statements were provided by Mr Zafiratos to Victoria Police containing what, if accepted are admissions by the accused, made to Mr Zafiratos when they were both in custody, Mr Zafiratos falls within the definition of prison informer and once the statements were served on the accused, Mr Zafiratos was not only a prison informer, but one whose identity, and preparedness to act as a prosecution witness in the trial of the accused was disclosed to the accused.
96I accept Mr Nichols’s evidence there is a risk to the safety of informers if their status as an informer, previously not known except to their handlers, is revealed. I accept there is a risk to the safety of informers if it is revealed other people are not informers. I accept it is a reasonable application of that policy to seek to protect the identity or status of a person as an informer by refusing to confirm or deny whether a named individual is or is not an informer.
97I accept too, Mr Nichols evidence as to the importance of community assistance in the gathering of intelligence, information and evidence to the prevention and detection of crime. I accept the importance in intelligence gathering of maintaining confidentiality, and of honouring promises of confidentiality. I accept that community sources may be discouraged from providing confidential information if promises of confidentiality are not honoured, whether because of a loss of trust in the integrity of police, or for fear of violent retribution. I accept his evidence media reporting of the role and identity of informers may also discourage community informing. I also accept his evidence loss of trust in the preparedness of Victoria Police or law enforcement agencies to honour promises of confidentiality and protect community sources can impede their effectiveness in preventing crime, ensuring public safety and protecting national security.
98However, applying the principles the Court outlined in the passage from Madafferi set out above, the public interests which much be balanced in a particular case are those, and only those which are genuinely engaged. Rigour and precision is required in articulating the public interests which are engaged. The evidence presented in support of the claim (that is, the public interests genuinely engaged) must demonstrate the currency and sensitivity of the information. A compelling case for secrecy must be made by reference to the evidence which demonstrates the public interests which have been engaged.
99There is no secrecy about Mr Zafiratos’s identity and status as a proposed witness in the accused’s trial. His identity as a prison informer, in relation to the accused and other prisoners has already been revealed to the accused. His offer to assist in the gathering of further evidence has also been revealed to the accused. The Letters of Support provided under the disclosure obligation reveal the extent of the information provided, Mr Zafiratos’s stated motivation, and Victoria Police’s assessment of the usefulness of the information, and of Mr Zafiratos’s motivation. As the Court observed in Zirilli in relation to the futility of claiming Public interest
Immunity over the informer activities of Mr Acquaro when that information was already in the public domain, that horse has already bolted.
100There is in my view no evidence to support the contention there is a risk public confidence in the manner in which police deal with informers will be undermined. There is no evidence promises to Mr Zafiratos to maintain confidentiality were broken, or he was otherwise deceived or taken advantage of. To the contrary, as Mr Nichol’s affidavit and annexures reveal, Mr Zafiratos made a conscious choice, once told his application to be registered as an informer had been refused, to sign the witness statements, knowing his identity as the source of the evidence would be revealed.
101Mr Zafiratos is not a public spirited, disinterested member of the community. Nor is there any evidence to suggest he is gullible, or susceptible to influence. He is a man with a long criminal record. In the Victoria Police LEAP report he is described as having an extensive criminal history for fraud related offences in Queensland, New South Wales and South Australia having already served a five year sentence for fraud in New South Wales, as showing no remorse for his conduct in targetting vulnerable young female victims, and as being “well versed in the legal system”. As the Letters of Support reveal, he made it clear he was seeking advantage for himself, in terms of his conditions whilst in custody, and the ultimate sentencing outcome, as a result of his informing.
102Once Mr Zafiratos’s choice to make statements capable of incriminating the accused in his pending trial was revealed to the accused, and the prosecution disclosed all material in its possession relevant to Mr Zafiratos’s credibility, the risks attendant on being a prison informer materialised. There is no evidence there is any likely compounding of that risk if the material over which Public Interest Immunity is claimed is released to the accused. The risks to public confidence in police leading to a drying up of community sources, and a resultant diminution in the intelligence gathering required to assist police in preventing crime, ensuring
public safety and protecting national security by release of that material must be evaluated by reference to that factual background.
103In undertaking the balancing act, I must take into account the matters set out in s 130 (5) of the Evidence Act. I have already made reference, when considering legitimate forensic purpose, to the potential assistance the information may provide, and the guidance provided by the Court of Appeal in Madafferi and Zirilli to that assessment. The charges the accused faces are very serious, carrying maximum terms of imprisonment of up to twenty five years. His right to a fair trial, including his right to disclosure of material which may assist his defence, on a central matter in issue in the trial, must be given considerable weight. In my view, that some evidence relating to Mr Zafiratos’s informing was already known to the accused fortifies, rather than undermines the arguments in favour of disclosure. The accused has already demonstrated the potential relevance of the information he has been provided with relating to the role of Mr Zafiratos as an informer. That, too supports the provision of all potentially relevant material. It is no answer to say, as the Chief Commissioner’s submissions did, that as the accused already has a substantial amount of information on the issue, that should be sufficient for his purposes. As Madafferi and Zirilli make clear, it is not for the police to determine what is, or may be relevant to an accused’s defence.
104As the court observed in Zirilli31, it may be, in the final analysis, the material will not be of any great use to the accused. To paraphrase and apply to the facts of this case what was said there, the court is in no position to make a definitive assessment regarding what if any use the material may play. It is for the accused’s legal advisers, when they are fully apprised of all of the details of the relationship between Mr Zafiratos and the police, to make that assessment. It would be quite wrong to deprive the accused of the opportunity to make legitimate use of the material, if he can do so.
Zirilli v the Queen [2021] VSCA 2 at [131 – 132].
105This passage from Zirilli in my view succinctly makes the case for considering the claim for Public Interest Immunity, by reference to the materials as a whole, and not by subjecting the individual documents to separate analysis in order to determine whether the substance of the information contained in them has already been revealed.
106I am not satisfied a compelling case for secrecy over the Public Interest Immunity material in reliance on the protection of a source from risk, or the risk to intelligence gathering by the use of informers generally has been made out.
107In the circumstances of this case, the public interest in providing an accused with access to information which may be relevant to the credibility of a prison informer who the prosecution intends to call as a prosecution witness and whose evidence, if accepted, could support his conviction, far outweighs the public interest in protecting information concerning a known source.
Protection of police methodologies and tactics, and the identities of police handlers and controllers
108In his affidavit, Mr Nichols also claimed Public Interest Immunity in respect of part of the Public Interest Immunity material. Specifically, the identities of handlers of human sources, and their controllers, and details of police methodology and tactics.
109He deposed:
“Disclosure of the identities of handlers and controllers creates a risk as many criminals are desperate to know who informed on them. If a criminal knew their arrest(s) was as a result of a human source and they also knew the identity of the handler or control, and the criminal could target the police officer to obtain the information. This can involve threats or acts of violence to the police member or members of that family”.
110It is clear from this passage that the risk to handlers or controllers is one which derives from the desire of a “criminal” to ascertain the identity of an informer who has informed against them. Whilst I accept the evidence that in a case where a person wished to ascertain the identity of an unknown informer who had informed
against them, handlers or controllers could be at risk, that is not the situation here. The identity of Mr Zafiratos as an informer is known. So too are the identities of those against whom he informed. There is no evidence that the handlers and controllers in this case would be subjected to the risks deposed to by Mr Nichols, in order for “criminals” to ascertain Mr Zafiratos’ identity. I am not satisfied that the public interest in protecting handlers or controllers in this case outweighs the public interest in providing the accused with information which may be relevant to the credibility of Mr Zafiratos at his trial.
111Mr Nichols affidavit does not identify any specific police methodologies or tactics which could be undermined if they became widely known. Bearing in mind the need to balance those public interests that are genuinely engaged, articulated with rigour and precision, and supported by evidence demonstrating the currency and sensitivity of the information, so as to constitute a compelling case for secrecy, the Chief Commissioner has not established that the public interest in preventing police methodologies or tactics being undermined has been genuinely engaged.
112In Zirilli32 and Madafferi33 the courts concluded, if it is established that the material sought may be of substantial assistance to the defence, it would be quite wrong to deprive the accused of the opportunity to make legitimate use of the material, if he can do so.
113In my view, for the reasons I have expressed, those observations apply in this case with equal force. It is for these reasons the claim for public interest immunity fails.
Orders
1The following documents:
·the affidavit of Mr Nichols with exhibits dated 4 December 2020;
at [132].
at [110].
·the original confidential submissions dated 4 December 2020;
·the supplementary submissions with attachments dated 5 March 2021;
·the transcript of the closed court hearing of 10 December 2020;
·the draft of these reasons provided to the legal representatives of the Chief Commissioner; and
·the unredacted version of these final reasons
are to be retained on the Court file and sealed. No person shall be permitted to inspect, copy or otherwise have access to the documents without leave from a Judge of the Court, which leave is to be granted only on notice to the Chief Commissioner of Police.
2The unredacted copy of these reasons for decision is not to be provided to any party or person other than the Chief Commissioner and his legal representatives without leave from a Judge of the Court, which leave is to be granted only on notice to the Chief Commissioner of Police.
3The Interpose Record in relation to Mr Zafiratos and the notes of Senior Constable McMullen produced in accordance with the subpoena, redacted in accordance with this ruling, are to be produced to the court and available for inspection by the parties by no later than 4pm on Friday 26 March 2021.
Annexure: redactions to the subpoenaed materials.
The diary notes, Exhibit 2
1Counsel for the Chief Commissioner noted that in the original affidavit producing the materials the subject of the subpoena, Mr Nichols had foreshadowed objection to production of certain passages in Exhibit BRN-2, the diary notes of Senior Constable McMullen on the ground they were not responsive to the subpoena, that is that they did not relate to her dealings with Mr Zafiratos. A further, differently marked up version of Senior Constable McMullen’s diary notes was provided with the supplementary submissions, and marked Exhibit 2 Proposed Redactions. The rulings I make on the proposed redactions are based on this second marked up version and the supplementary submissions.
2It goes without saying that those passages which are not responsive to the subpoena, that is are not relevant, because they do not relate to any dealings with, or in relation to Mr Zafiratos are not required to be produced. On the face of it, the passages in the diary notes, Exhibit 2 Proposed Redactions, marked in yellow and blue as irrelevant are properly so described. They do not relate to any dealings with, or in relation to Mr Zafiratos. They are not required to be produced and can be redacted.
3Objection has also been taken on privacy grounds to the provision of personal information in Senior Constable McMullen’s notes. I accept, consistently with general practice that the references to what have been described as “collateral persons”, and which are boxed in black are not required to be produced. The personal information boxed in black in Exhibit 2 Proposed Redactions is not required to be produced and can be redacted.
4Objection has also been taken to the provision of the names of human source handlers and controllers. Their personal information has been boxed in green. For the reasons expressed in the draft reasons already provided to the Chief Commissioner the claim for redaction of the names of the handlers and controllers
on public interest immunity grounds is rejected. I am satisfied, however, on the material available to me, that the Chief Commissioner has established a reasonable basis for objecting to disclosing the names of human source handlers and controllers on privacy grounds. All personal information boxed in green in Exhibit 2 Proposed Redactions is not required to be produced and can be redacted.
The Interpose Record Exhibit 1
5The Chief Commissioner submitted in the substantive Public Interest Immunity application Mr Radovilsky had failed to establish a legitimate forensic purpose for production of the Interpose record in its entirety. In contrast to the approach taken in relation to the diary notes, no individual passages from the Interpose record were identified before the original hearing as falling within other exceptions. In my draft reasons, I rejected the submission no identified legitimate purpose had been identified. However, the Chief Commissioner’s supplementary submissions filed after being provided with my draft reasons identified selected passages from the Interpose record to which objection to production was taken, for relevance or privacy reasons. The challenged passages were identified in a marked-up version described as Exhibit 1 Proposed Redactions filed with the supplementary submissions.
6For the same reasons expressed in relation to Senior Constable McMullen’s diary notes, I am satisfied on the material available to me that the objection to production of personal information in relation to “collateral parties” on privacy grounds has been made out. The personal information boxed in yellow on pages 2 and 9 of the Interpose record is not required to be produced and can be redacted. I am not satisfied that the passage on page 10, boxed in yellow is personal information which should be redacted for privacy reasons, and I direct it be produced.
7Consistently with my findings in relation to Senior Constable McMullen’s diary notes and for the reasons expressed in the draft reasons already provided to the
Chief Commissioner the claim for redaction of the names of the handlers and controllers on Public Interest Immunity grounds is rejected. Again, I am satisfied that the Chief Commissioner has established a reasonable basis for objecting to disclosing the names of human source handlers and controllers in the Interpose record on privacy grounds. All personal information boxed in green in Exhibit 1 Proposed Redactions is not required to be produced and can be redacted.
8The Chief Commissioner also applied for the redaction of what the supplementary submissions described as “details of general (confidential) police practices and methodology” in the Interpose Record. They were boxed in blue in Exhibit 1 Proposed Redactions. Counsel submitted those proposed redactions did not bear on any issue in the proceeding, including Mr Zafiratos’ credibility, and were therefore outside the scope of the subpoena. Insofar as the submissions involve an argument as to relevance, based on what are submitted to be the “substantial and causative reasons” for my finding the Interpose record and diary notes satisfy the legitimate forensic purpose test, they come at the least perilously close to seeking to traverse my ruling.
9I am not satisfied the passages in blue are not relevant, that is fail the legitimate forensic purpose test, and so, fall outside the scope of my ruling. However, on the information currently available to me, I consider it arguable that the public interest in preserving the confidentiality of those passages described as containing details of general (confidential) police practices and methodology outweighs the public interest in their production. All details of general (confidential) police practices and methodology boxed in blue in Exhibit 1 Proposed Redactions is not required to be produced and can be redacted.
Reserved rights
10I reserve the right for the parties, after the diary notes and Interpose record, redacted in accordance with this ruling, have been produced and inspected, to apply, on notice to the Chief Commissioner, for inspection of any redacted portions
of these documents, if they can identify a potential relevance having regard to other material available to them.
11I reserve the right to the parties to apply, on notice to the Chief Commissioner, for disclosure of the names of “collateral persons”, or handlers or controllers, if they can identify a potential relevance of the disclosure of their identities, having regard to other material available to them, which outweighs their right to privacy.
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