Director of Public Prosecutions v Westbrook (a pseudonym) (Ruling 1)
[2020] VSC 290
•26 May 2020
| IN THE SUPREME COURT OF VICTORIA | Unrestricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2019 0267
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KENT WESTBROOK (A PSEUDONYM) |
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JUDGE: | Beale J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 21 May 2020 |
DATE OF JUDGMENT: | 26 May 2020 |
CASE MAY BE CITED AS: | DPP v Westbrook (a pseudonym) (Ruling 1) |
MEDIUM NEUTRAL CITATION: | [2020] VSC 290 |
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CRIMINAL LAW – Murder – Disclosure – Public Interest Immunity claim by Chief Commissioner – Chief Commissioner seeking that Director of Public Prosecutions review the confidential information and participate fully in the Public Interest Immunity hearing – Director, consistent with longstanding policy, unwilling to do so – Whether Director required to accede to Chief Commissioner’s wishes in order to properly discharge her functions – R v Farquharson (2009) 26 VR 410 – Gould v Director of Public Prosecutions (Cth) (2018) 359 ALR 142 – Lee v The Queen (2014) 253 CLR 455 – R v Lipton (2011) 82 NSWLR 123 – R v Solomon (2005) 92 SASR 331 – Ex parte Brown; ReTunstall (1966) 67 SR(NSW) 1 – Evidence Act 2008 (Vic) s 130.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P Doyle | Office of Public Prosecutions |
| For the Chief Commissioner of Police | Mr A Dinelli and Mr A James-Martin | Victorian Government Solicitor’s Office |
HIS HONOUR:
Background
With regard to the prosecution of one Kent Westbrook[1] for murder, the Chief Commissioner of Victoria Police wants me to request[2] the Director of Public Prosecutions to receive and consider material which is the subject of a public interest immunity (PII) claim by the Chief Commissioner. I will hereafter refer to this material as the “the confidential information”.
[1]This ruling has been anonymised by the adoption of a pseudonym in place of the name of the accused.
[2]Initially the Chief Commissioner sought “orders” that the Director review the confidential information and participate fully in the PII hearing on 4 June 2020 but when the Director, in supplementary written submissions, questioned the Chief Commissioner’s standing to seek such orders but indicated she would accommodate “requests” from the Court along the same lines, the Chief Commissioner modified his applications.
The Chief Commissioner also wants me to request[3] the Director to fully participate in the PII hearing which I will conduct on 4 June 2020.
[3]Ibid.
Consistent with long-standing policy,[4] the Director opposes both applications. She is of the view both generally and in this particular case that the proper performance of her functions may be compromised by receipt of such material and/or by participation in the PII hearing to the extent suggested by the Chief Commissioner. Of course, the Director is willing to assist the court, if required, to better understand the prosecution case against the accused should the prosecution summary of opening (read in conjunction with the depositions) leave something to be desired in that regard.
[4]See, for example, the Director’s Policy dated 17 December 2019. In Chapter 2, “The Role of the Prosecutor,” under the heading “Disclosure”, this appears at [15] to [19]:
15.Subject to any claim of public interest immunity or legal professional privilege or any statutory provisions to the contrary, prosecutors must disclose to the accused any material which is known to them which, on their sensible appraisal:
i. is relevant or possibly relevant to an issue in the case; or
ii. raises or possibly raises a new issue that is not apparent from the evidence the prosecution proposes to use; or
iii. holds out a real as opposed to fanciful prospect of providing a line of inquiry which goes to (i) or (ii) above.
16.The prosecution duty of disclosure does not extend to disclosing material:
i. relevant only to the credibility of defence (as distinct from prosecution) witnesses;
ii. relevant only to the credibility of the accused;
iii. relevant only because it might deter an accused from giving false evidence or raising an issue of fact which might be shown to be false;
iv. for the purpose of preventing an accused from creating a trap for themselves, if at the time the prosecution became aware of the material it was not a relevant issue at trial.
17.If material is not disclosed under paragraph 15 above on the basis of a claim of public interest immunity or legal professional privilege or a statutory prohibition, any application or submission to a court in support of that claim should be made by the person or body which holds the material or the privilege, as the case may be. A prosecutor should not represent that person or body, except in relation to a privilege held by the DPP or OPP.
18.Subject to paragraph 19 below, if an investigative agency has not disclosed to the accused confidential information on the basis that it is subject to a claim of public interest immunity or legal professional privilege or a statutory prohibition, the agency should inform the prosecutor:
i. of the nature of the material and the basis of the claim;
ii. whether a ruling has been made by a court on the claim and, if so, provide to the prosecutor a copy of the ruling and the reasons given by the court (unless the prosecutor was present in court or a non-publication order prevents the information being provided); and
iii. whether, in the opinion of the agency, the material, on a sensible appraisal, substantially weakens the case for the prosecution or substantially strengthens that of the defendant.
19.So far as practicable, the prosecutor should not be provided with, or informed of the content of, any material to the extent that it is subject to a claim of public interest immunity, unless the prosecutor so requests (underlining added).
Submissions
In broad terms, the Chief Commissioner submits that the obligations that the common law imposes on the Director regarding whether to continue a prosecution and whether to disclose information to an accused also obliges her to review the confidential information and fully participate in the PII hearing in this case. In oral submissions, the Chief Commissioner submitted:
…for the Director not to see this information simply makes the discharge of her functions and duties extremely difficult… Indeed, some functions would simply be neutered by reason of not having this material in the Director's possession.[5]
[5]Transcript of Proceedings, DPP v Westbrook (Supreme Court of Victoria, Beale J, 21 May 2020), 27.
The Chief Commissioner placed particular reliance on the following remarks of Doyle CJ (with whom Duggan and Sulan JJ agreed) in R vSolomon:
What happened in this case illustrates the importance of the police complying with their duty to ensure that the Director of Public Prosecutions is in a position to make appropriate disclosure to the legal representatives of the accused. It is not appropriate for the investigating officers, or their superiors, to make a decision that potentially relevant and disclosable material will not be disclosed, because there are or may be grounds for resisting that disclosure. That is a decision that should be made by the Director. If the Director makes that decision, the Director can then consider whether anything, and if so what, should be done to inform the legal representatives of the accused that there is material that is being withheld… The interests of justice, and the public interest in the efficient disposition of cases before the court, combine to require careful attention by the police to their duty to inform the Director adequately of all material that might have to be disclosed, leaving it to the Director to decide whether there are good grounds for withholding any material, and what should be done in that event.[6]
[6]R v Solomon (2005) 92 SASR 331, 359 [116] (‘Solomon’).
The Chief Commissioner noted that, following Solomon, legislation was introduced in South Australia giving effect to the views of Doyle CJ.[7] Similar legislation also operated for a time in New South Wales, and was considered in R vLipton,[8] although current legislation in New South Wales accords with the Director’s policy here.[9]
[7]Director of Public Prosecutions Act 1991 (SA) s 10A.
[8]R v Lipton (2011) 82 NSWLR 123 (‘Lipton’).
[9]Director of Public Prosecutions Act 1986 (NSW) s 15A.
The Chief Commissioner notes that in Lipton, where the Court decided that the relevant statutory framework for disclosure to an accused required the police to provide all relevant information to the prosecution, with the prosecution then deciding whether to disclose the information and/or make a PII claim, McColl JA, with whom RS Hulme and Hislop JJ agreed, spoke of that modus operandi as reflective of the common law obligation of disclosure.[10]
[10]Lipton (n 8) 153 [107].
Further, the Chief Commissioner submits that it would be of assistance to me to have both the Director and the Chief Commissioner fully involved at the PII hearing, with the Director focusing on the fairness of the trial and the Chief Commissioner focusing on the public interest in preserving the confidentiality of the information.
The Chief Commissioner gives an assurance that knowledge of the confidential information in this case will not give the Director an unfair advantage over the accused at trial if the PII claim is successful.
The Chief Commissioner denies that he is trying, as the Director characterised it, to make it ‘commonplace for trial prosecutors to examine and make submissions about material which the defence has not seen and may never see.’[11]
[11]See the Director’s Written Submissions at [4].
The Director submitted that neither her duty to consider whether a prosecution should continue or her common law disclosure obligations required her to review the confidential information at this stage, or to participate fully in the PII hearing. It was sufficient for present purposes for her and the accused to be informed, in general terms, that relevant confidential information was in the possession of the Chief Commissioner and was the subject of a PII claim.
The Director noted that Solomon[12] refers to police providing “adequate’” information to the prosecution without defining what is meant by “adequate”. The Director submits that the information already provided to the Director, in conformity with long standing practice and policy, is adequate.
[12]Solomon (n 6) 359 [116].
The Director submitted that the procedure advocated by the Chief Commissioner is undesirable for several reasons. First, knowledge of the confidential information might confer an unfair advantage on the Director at trial. Whether it will or not may not be easy to work out in advance of a trial with all its twists and turns. The Director relied on what Basten JA said in Gould[13] about ‘the importance in some circumstances of quarantining particular material from the prosecution’.[14] Second, and “more fundamentally” according to the Director, justice must be seen to be done. Even if no actual advantage accrues, it might appear that the Director enjoys an unfair advantage if she has seen the confidential information. Third, the more widely confidential information is circulated, the greater the risk of improper disclosure, both advertent and inadvertent.
[13]Gould v Director of Public Prosecutions (Cth) (2018) 359 ALR 142.
[14]Ibid 146 [16]; see also Lee v The Queen (2014) 253 CLR 455, 470 [44] and Ex parte Brown; ReTunstall (1966) 67 SR(NSW) 1.
Analysis
Much was made in the Director’s submissions of the fact that her position is in accord with long-standing policy. Whether a policy is long-standing or not is beside the point: longevity does not make a policy right, or in accord with obligations under the common law.
As for the Director’s analysis of Solomon,[15] although the word “adequate” in [116] is not defined, its meaning can be gleaned from the rest of the paragraph. Since Doyle CJ stated that it is for the prosecution, not the police to decide whether information is sought to be withheld, that task can hardly be performed by the prosecution if the police provide the prosecution no more than a general description of the information. The role that Doyle CJ would have the prosecution perform requires detailed disclosure of information, including confidential information, by the police to the prosecution.
[15]Solomon (n 6) 359 [116].
But having said all of that, there is much force, it seems to me in the three reasons given by the Director for her policy and practice. I do not need to elaborate on those reasons. I would, however add two more.
First, whilst the Chief Commissioner’s assurance may be correct in this case,[16] namely, that the Director will not obtain an unfair advantage at trial if apprised of the confidential information, adopting an approach which requires investigating agencies to make that judgment call generally seems to me to be fraught. Better in my opinion not to run the risk of an unfair advantage accruing to the Director, or appearing to accrue.
[16]Transcript of Proceedings, DPP v Westbrook (Supreme Court of Victoria, Beale J, 21 May 2020), 23, 25-6.
Second, the Director’s approach promotes a more efficient use of prosecutorial resources. As mentioned, I will hear the PII claim on 4 June. If I reject the claim, the confidential information will be disclosed to both the prosecution and the accused. At that point, the task of deciding, whether to continue the prosecution can be appropriately undertaken by the Director in the light of the disclosed information. If, on the other hand, I uphold the PII claim, the Director will have the benefit of my reasons in deciding whether to require the Chief Commissioner to provide her with the confidential information (so as to decide, for example, whether she should discontinue the prosecution). Of course, I will need to be circumspect in my reasons, but that will not prevent me from conveying in broad terms my view of the significance of the confidential information and that will, no doubt, inform the Director’s decision whether to require the Chief Commissioner to provide the materials to her.
As for my capacity to perform my role at the PII hearing, I think it unlikely that I will be handicapped by the Director adhering to her practice of assisting the court to understand the issues in the trial (if that should be required) but not being apprised of the confidential information.
Whilst I naturally accord the utmost respect to the views expressed in Solomon and Lipton as to the mechanics of how the prosecution and police should discharge their common law disclosure obligations, I am not bound by them. In any event, if those views were given full effect, it seems the Chief Commissioner and other investigative agencies would have to forego their right under s 130 of the Evidence Act 2008 (Vic) to make a PII claim, leaving it to the Director to decide whether to initiate and pursue such a claim. I doubt very much that the Chief Commissioner, for one, would be content with such an arrangement.
In my view, the modus operandi for disclosure and PII claims set out in the Director’s policy does not derogate from common law obligations of disclosure on the prosecution and police[17] and has the advantages referred to above.
[17]See, eg, R v Farquharson (2009) 26 VR 410, 464-5.
Accordingly, I reject the applications of the Chief Commissioner. I am not persuaded that it is necessary or even desirable for the Director to do what the Chief Commissioner wants her to do in order for her to properly discharge her functions. Nor am I persuaded that it is necessary or desirable that she do the things the Chief Commissioner wants her to do for me to properly perform my task in deciding the PII claim. In my view, neither high principle nor the particular circumstances of this case justify making the requests sought.
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