Director of Public Prosecutions v Zogheib (Ruling No 2)
[2014] VSC 550
•24 October 2014
| IN THE SUPREME COURT OF VICTORIA | Not restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CI 2014 0098
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MUSTAFA ZOGHEIB |
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JUDGE: | BEALE J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 23 & 24 October 2014 |
DATE OF RULING: | 24 October 2014 |
DATE OF REASONS: | 27 October 2014 |
CASE MAY BE CITED AS: | DPP v Zogheib (Ruling No 2) |
MEDIUM NEUTRAL CITATION: | [2014] VSC 550 |
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EVIDENCE – Public interest immunity – Claim by Chief Commissioner of Victoria Police - Disclosure of CCTV footage would disclose identity of confidential police informer - Claim upheld - Evidence Act 2008, ss 130, 192.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr Chadwick QC | Office of Public Prosecutions |
| For the Accused | Mr Toohey | Melasecca Kelly Zayler |
HIS HONOUR:
These are my reasons for a ruling given on 24 October 2014 upholding a claim of public interest immunity by the Informant in respect of certain undisclosed CCTV footage, disclosure of which would reveal the identity of the confidential source of that footage.
Background
By way of background, the accused is charged with five charges of reckless conduct endangering life on Indictment No. C1309390.6. All the charges arise out of an incident on 10 August 2013 outside the accused’s residence, a converted garage at his parents’ home at 1 John Paul Drive, Hillside.
The prosecution case may be summarised as follows.[1] At about 4.40am on 10 August 2013, the accused left his converted garage and got into a silver Honda sedan registered WSD 447, which was parked in the driveway. Almost immediately, a burgundy Holden station wagon registered number RZU 429, which had parked a short time before in John Paul Drive just east of and facing in the direction of the accused’s home, drove up and stopped in the accused’s driveway, close behind the Honda. The accused got out of the Honda on the arrival of the Holden. The occupants of that Holden were Omar Tiba, Mohamed Tiba, Zain Tiba and a fourth male who has not been identified. After Omar and Mohamed Tiba stepped out of the Holden, the accused produced a handgun from the front of his grey track pants and pointed it towards Mohamed and Omar Tiba before running back around the corner of the garage towards the front door of the garage. Mohamed Tiba ran after the accused. The accused fired one shot from his handgun towards Mohamed Tiba as he chased him. Mohamed Tiba immediately turned and ran back to the Holden.
[1]I attach to these reasons a copy of the Director of Public Prosecutions, ‘Summary of Crown Opening’ in DPP v Zogheib, S CR 2014 0098, 30 April 2014 and Director of Public Prosecutions, ‘Supplementary Summary of Prosecution Opening Pursuant to s 182 Criminal Procedure Act 2009’ in DPP v Zogheib, S CR 2014 0098, 20 August 2014.
After the first shot was fired by the accused, Omar Tiba, Zain Tiba and the fourth unidentified male also retreated. Omar Tiba was holding a handgun, but it was never fired. The accused fired a second shot from near the front door of the garage. The accused then walked from near the front door of the garage towards the corner of the garage. On reaching the corner of the garage, the accused raised the handgun and used the corner of the garage to cover and stabilise himself whilst he aimed and fired directly at Zain Tiba. At that point, Zain Tiba was taking cover behind the open front driver’s door of the Honda. After firing this shot, the accused turned and headed back towards the front door of the converted garage. Omar Tiba took cover behind the Holden, while Zain Tiba took cover behind the Honda before running to the Holden and entering from the driver’s side.
Once the four males were in the Holden, they reversed out from the driveway crossover and headed west towards Panorama Drive. The accused took aim and discharged a further two shots at the Holden as it was driving out of John Paul Drive towards Panorama Drive. At least five bullets were discharged from the handgun by the accused. One of the bullets discharged by the accused struck the roof of the Honda causing some damage. The accused waited a short time after the Holden left before he left in the Honda.
Disclosed CCTV footage
The incident was caught on two security cameras situated at 1 John Paul Drive, one camera being mounted on the exterior of the main residence and the other on the exterior of the converted garage. The accused’s recording unit situated in the ceiling of the converted garage recorded the footage from these two security cameras. This footage has been disclosed to the defence (‘the disclosed footage’) and both the prosecution and defence rely on it for their respective cases. The central issue in this trial is whether the accused acted in reasonable self-defence. The accused contends that the disclosed footage shows that to be the case. In the first Defence Response to Prosecution Opening,[2] which I annex to these reasons, the defence says ‘shorty [sic] after he saw the men arrive, the accused became aware that at least two of the men were armed with firearms. At all times the Accused was in fear of his life…’.[3]
[2]The Accused, ‘Defence Response to Prosecution Opening’ in DPP v Zogheib, S CR 2014 0098, 19 June 2014. See also Defence Response to Prosecution Opening in DPP v Zogheib, S CR 2014 0098, 29 August 2014, also annexed to these reasons.
[3] Defence Response 19 June 2014 at [5] and [6] .
Undisclosed CCTV footage
It transpires that there is other CCTV footage of the incident from a neighbouring property, upon which the prosecution does not intend to rely. This CCTV footage has not been provided to the defence, although its existence was disclosed to the defence in the Form 30 for the committal proceeding. Relevantly, the Form 30 referred to ‘CCTV footage obtained from neighbouring property for the 10th August 2013.’ The defence, in its Form 32 for the committal proceeding, unsuccessfully sought disclosure of this CCTV footage (the ‘undisclosed footage’).
Procedural history
On 23 October 2014, the Informant Sergeant Andrew Eyries, in the course of a Basha hearing, was asked by the accused’s counsel, Mr Toohey, whether, prior to conducting the first record of interview with the accused on 13 August 2013, he had viewed footage of the incident. At that point, Sergeant Eyries made his claim for public interest immunity in respect of the undisclosed footage.
After a short adjournment, Ms Fox of counsel appeared on behalf of the Chief Commissioner of Police (‘Chief Commissioner’) to make submissions in support of Sergeant Eyries’ claim for public interest immunity. I adjourned the case overnight so that Sergeant Eyries could swear a confidential affidavit.
On 24 October 2014, Ms Fox provided me with the confidential affidavit sworn by Sergeant Eyries which, as I had requested, exhibited a disc containing the undisclosed footage. I read the confidential affidavit and viewed the footage in Chambers.[4] Upon returning to court, I indicated prematurely that I would uphold the claim for public interest immunity and give my reasons later. Mr Toohey indicated at that point that he wished to make submissions, notwithstanding that he was not privy to the contents of the confidential affidavit or the undisclosed footage.
[4]The affidavit and disc have since been placed in the court file in a sealed envelope marked ‘Confidential – not to be opened without an order of a judge of the court’.
Submissions
First, I received written[5] and oral submissions from Ms Fox, who, in short, argued that disclosure of the CCTV footage would disclose a confidential source of information in relation to the enforcement of the administration of a law of the State,[6] and that the public interest in preserving confidentiality outweighed the public interest in disclosure. She submitted that the undisclosed footage added nothing of significance to what could be seen on the disclosed footage, and was in fact inferior in content and quality.
[5]I attach a copy of Ms Fox, ‘Outline of Submissions’ in DPP v Zogheib, S CR 2014 0098, 24 October 2014.
[6]See Evidence Act 2008 (Vic), ss 130(5)(e).
Mr Toohey submitted that the source of the undisclosed CCTV footage was not confidential. First, he said the Form 30 identified the source of the footage as ‘a neighbouring property’. In the course of his submissions, he noted that the accused’s home is a corner property and that his next door neighbours at 3 John Paul Drive have security cameras clearly on display. Second, he said depositional material indicated it was a female from a neighbouring property in John Paul Drive. He took me to paragraph 5 of Constable Licastro’s statement,[7] where, referring to his role in the investigation on the morning of 10 August 2013, Licastro stated:
I spoke with the original complainant from number [redacted] John Paul Drive who stated that she may have CCTV footage of the incident. I contacted Detective Senior Constable Andrew Eyries and advised him of this.
[7]See Depositions, 251.
Mr Toohey next took me to p 159 of the depositions, which are copies of notes made by Sergeant Eyries for 10 August 2013. At the top of the page the following statement appears: ‘CCTV – viewed and copy obtained’.
Mr Toohey also took me to the notes of a police officer named Detective Senior Constable Coy, and in particular an entry that reads: ‘CCTV footage collected by Eyries from neighbouring house’.[8]
[8]See Depositions, 157.
Mr Toohey submitted that, putting this all together, it is apparent that the footage comes from number 3 John Paul Drive and that, consequently, disclosing the footage to the defence would not reveal the identity of a ‘confidential source’. Mr Toohey submitted that, while there is strong public interest in protecting the identity of police informers who implicate others, the person who was the source of the relevant footage was not an informer in that sense. He submitted that, given what was shown on the disclosed footage, the undisclosed footage was likely to support the defence case that the accused acted in self-defence. The ‘informer’ would be exculpating, not implicating the accused. Hence, disclosing the identity of the source did not carry with it the danger sometimes associated with disclosing the identity of informers in the traditional sense.
Ms Fox, in reply, emphasised s 130(4)(f) of the Evidence Act 2008 (Vic) and maintained that the source was confidential. In relation to paragraph 5 of Licastro’s statement, where the number of the relevant premises in John Paul Drive had been redacted, she made the point that the redaction is there for a reason, namely, to preserve the confidentiality of the source of the undisclosed footage. She also made the point that whilst the materials highlighted by Mr Toohey make it plain that it was a neighbour in John Paul Drive who was the source of the footage, the precise location of that neighbour was not given.
Evidence on the voir dire
At the conclusion of the submissions by Mr Toohey and Ms Fox, I indicated that my initial view that the claim of public interest immunity should be upheld had not changed, at which point Mr Toohey sought the opportunity to call evidence from Mr Zogheib on a voir dire, which I allowed him to do. The thrust of Mr Zogheib’s evidence was that on 13 August 2013, prior to the commencement of his first record of interview, Sergeant Eyries actually told him that he was in possession of CCTV footage from Mr Zogheib’s next door neighbour. Mr Zogheib also gave evidence that he knew as at August 2013 that there were security cameras at 3 John Paul Drive. Mr Toohey showed him several photographs taken by police in August 2013 and Mr Zogheib circled the relevant security cameras at 3 John Paul Drive. He said he had never had any difficulty with the neighbours at number 3, who were of Asian appearance. He said he did not know them well but they were people to whom he would say hello from time to time. Towards the end of his evidence-in-chief, when taken back to the conversation that he had had with Sergeant Eyries just prior to the record of interview on 13 August 2013, Mr Zogheib stated that Sergeant Eyries had spoken of ‘the next door neighbour’ as the person who had supplied him with footage.
Under cross-examination from Ms Fox, Mr Zogheib acknowledged that there were houses across the street from him in John Paul Drive and that he could not exclude the possibility that there were CCTV cameras at those other properties. He agreed with the proposition that he was presuming that the undisclosed footage had come from his next door neighbour.
Under re-examination by Mr Toohey, Mr Zogheib said that the reason he believed his next door neighbour was the source of the footage was because of what Sergeant Eyries had told him prior to the record of interview.
Sergeant Eyries was called by Ms Fox on the voir dire. In examination-in-chief, he testified that the only conversation he had with Mr Zogheib prior to commencement of the record of interview was to tell him that the subject matter of the interview would be the incident of 10 August 2013. Under cross-examination, Sergeant Eyries denied that he had spoken to Mr Zogheib prior to the interview about being in possession of CCTV footage, let alone telling Mr Zogheib that he had acquired footage from Mr Zogheib’s ‘next door neighbour’.
Finding of Fact
I accept Sergeant Eyries’ evidence that he did not tell Mr Zogheib prior to the record of interview on 13 August 2013 that he had obtained footage of the relevant incident from Mr Zogheib’s ‘next door neighbour’. His evidence is consistent with his claim for public interest immunity. It is also consistent with his notes at p 159 of the depositions where the relevant entry for 10 August 2013 reads: ‘CCTV – viewed and copy obtained.’ The identity of the source is not redacted – rather, it is not included. Sergeant Eyries’ account is also consistent with the redaction in paragraph 5 of Licastro’s statement and the non-specificity in the Form 30 as to which neighbour provided footage to the police.
The fact that Sergeant Eyries, as his note indicates, viewed the undisclosed footage prior to the record of interview on 13 August 2013 does not, in my opinion, make it more likely that Mr Zogheib’s account is accurate.
The Law
Section 130 of the Evidence Act 2008 is the relevant provision under which the public interest immunity claim is made. Relevantly, it provides:
(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—
…
(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 a defendant —whether the direction is to be made subject to the condition that the prosecution be stayed.
Because the Chief Commissioner seeks a direction preventing disclosure under s 130, he bears the burden of establishing, first, that the information or document in question does relate to a matter of state; second, that there is public interest in preserving the confidentiality of the source of the undisclosed footage; and, third, that this interest outweighs the competing public interest in disclosure of the footage to the defence. The standard of proof is on the balance of probabilities pursuant to s 142(1) of the Evidence Act 2008. The authorities indicate that it is appropriate to adopt a more ‘liberal’ approach to the production of documents in a criminal case[9] and that ‘the claim for 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.’[10]
[9]DPP v Debono [2012] VSC 476; (2012) 225 A Crim R 585 at [23].
[10]Victoria v Brazel [2008] VSCA 37; (2008) 19 VR 553 at [68].
Consideration must also be given to the mandatory criteria set out in s 192 of the Evidence Act 2008, which applies whenever leave permission or a direction is sought under the Evidence Act 2008. Relevantly, s 192 provides:
…
(2)Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account—
(a)the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing; and
(b)the extent to which to do so would be unfair to a party or to a witness; and
(c)the importance of the evidence in relation to which the leave, permission or direction is sought; and
(d) the nature of the proceeding; and
(e)the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence.
There is some overlap so far as the criteria in s 130 (5) and s 192(2) of the Evidence Act 2008 are concerned.
Analysis
I find that the source of the undisclosed footage is confidential, even though the prosecution disclosed that it comes from a neighbouring property in John Paul Drive. Disclosure of the footage would disclose information that relates to a ‘matter of state’ because it would ‘enable a person [namely, the accused] to ascertain the identity of a confidential source of information relating to the enforcement or administration of a law of the State’.[11] There is a public interest in maintaining that confidentiality, lest such sources ‘dry up.’[12] Also, based on material in the confidential affidavit, the disclosure of the source’s identity may well expose that source to some danger.
[11]Evidence Act 2008, ss 130(4)(e).
[12]R v Young (1999) 46 NSWLR 681, 701.
Most significantly, the undisclosed footage does not in my view add anything of significance to what is shown on the clearer, more extensive disclosed footage. I express that view having viewed both the undisclosed footage and the disclosed footage many times and having regard to the content of the prosecution opening and the defence response, copies of which are annexed to these reasons. I do not consider the content of the undisclosed footage to be ‘important’ vis-a-vis what is the central issue in this case, namely, whether the accused acted in reasonable self-defence when he discharged his handgun. What support can be gained for that defence from the undisclosed footage can be gained in larger measure from the disclosed footage. The disclosed footage shows the four males arriving in the Holden, apparently ambushing the accused. It shows them hurriedly getting out of the Holden and advancing threateningly on Mr Zogheib, who produces a gun as he retreats towards the front door of his garage. It shows one of the four males in possession of a handgun, and holding it in plain view. The possibility that Mr Zogheib was aware at the time that at least one of the males was armed is certainly open based on the disclosed footage.
Of course, the fact that it is the defence that seek disclosure of the document, and that the accused is facing serious charges are matters that militate in favour of disclosure but the availability of other, superior footage has greater significance. In these circumstances, I do not consider that the making of a direction for non-disclosure under s 130 of the Evidence Act 2008 is unfair to the accused.
For these reasons, I made the ruling upholding the claim for public interest immunity.
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