Doudar v Commissioner for Corrective Services NSW

[2011] NSWSC 778

Supreme Court

New South Wales

Medium Neutral Citation:

Doudar v Commissioner for Corrective Services NSW [2011] NSWSC 778

Hearing dates:

21 July 2011

Decision date:

29 July 2011

Jurisdiction:

Common Law

Before:

Davies J

Decision:

(1) Order that the Defendant is not required to produce in answer to the Notice to Produce of 25 May 2011 or otherwise:

(a) intelligence report 1037.09 dated 2 July 2009;

(b) intelligence report 032.RMPC dated 17 July 2009;

(c) an unredacted incident report of F Cunningham, Assistant Superintendent, dated 18 July 2009;

(d) unredacted file note of B Mood, Superintendent dated 20 July 2009.

(2) Order that the confidential affidavit of Michael Allen John Hovey sworn 5 July 2011 and confidential exhibit MH1 are not to be made available to any person apart from the Defendant and his legal advisors without the leave of a judge of the Court.

(3) Dismiss the Plaintiff's Notice of Motion filed 24 June 2011.

(4) Order that the Plaintiff pay the Defendant's costs of the Notice of Motion.

Catchwords:

PRACTICE AND PROCEDURE - Notice to Produce - public interest immunity - proceedings for judicial review of exclusion order by Commissioner for Corrective Services - claim for public interest immunity over some documents relied upon by the Commissioner for his decision - whether s 130 Evidence Act applies - whether information and documents concern "matters of state" - balancing exercise between public interest in disclosure and preserving confidentiality - claim of public interest immunity upheld.

Legislation Cited:

Evidence Act 1995
Uniform Civil Procedure Rules

Cases Cited:

Attorney-General for NSW v Stuart (1994) 34 NSWLR 667
Cain v Glass (No. 2) (1985) 3 NSWLR 230
Commonwealth v Northern Land Council [1993] 176 CLR 604
DPP v Smith (1996) 86 A Crim R 308
National Crime Authority v Gould (1989) 23 FCR 191
Nicopoulos v Commissioner for Corrective Services [2004] NSWSC 562
State of Victoria v Brazel [2008] VSCA 37
Young v Quin (1985) 4 FCR 483

Category:

Procedural and other rulings

Parties:

Nanci Doudar (Plaintiff)
Commissioner for Corrective Services NSW (Defendant)

Representation:

K Edwards (Plaintiff)
R Bhalla (Defendant)
Legal Aid Commission of NSW (Plaintiff)
Crown Solicitor's Office (Defendant)

File Number(s):

2011/174759

Judgment

1. This is an application for production of documents referred to in a Notice to Produce dated 25 May 2011 served by the Plaintiff on the Defendant. The Defendant resists the production of some of the documents claiming public interest immunity.

The proceedings

1. The Plaintiff's husband, Rabih Abdulrahman, is being held on remand at the Metropolitan Rehabilitation Remand Centre at Silverwater. He appears to have been held on remand for at least 2 years.

1. On 26 May 2010 the Plaintiff visited her husband at the MRRC and left some clothing including underwear and socks for him on that occasion.

1. On 11 June 2010 Superintendent B Mood wrote to the Plaintiff on behalf of the Commissioner denying her access to all New South Wales Correctional Centres from 9 June 2010 until after 9 June 2012. The reason was said to be that intelligence information had implicated her in a conspiracy with her husband to introduce contraband into the MRRC.

1. On 1 July 2010 the Plaintiff wrote to the Commissioner's Office asking for clarification about the alleged incident. She claimed in the letter that she had brought her husband some socks and underwear and that they were "thoroughly checked in front of myself by a Correctional Officer and cleared to be passed on". Interestingly, the Plaintiff goes on to say in the letter:

I am confused and surprised that search was not conducted in front of me and no drugs were detected why is it then possible that with no proof other then (sic) these officers words uncorroborated mine and my children's visits have been cancelled until 2012...

The letter of 11 June 2010 made no mention of drugs but only "contraband".

1. In fact it was drugs that were found as was subsequently clarified in a letter of 19 July 2010 and in a Statement of Reasons for the Decision of the Commissioner provided in about July 2011. The Plaintiff has commenced proceedings seeking orders in the nature of certiorari quashing the decision of the Defendant of 11 June 2010 (the Summons wrongly says 11 June 2011) denying her access to NSW Correctional Facilities and an order in the nature of mandamus requiring the Defendant to reconsider the decision according to law.

1. The Plaintiff served a Notice to Produce for Inspection on 25 May 2011 requiring production of the following documents:

1. Any documentation relating to the decision to prohibit Nanci Doudar from visiting NSW correction centres for at least two years (expressed in letter dated 11 June 2010 from Superintendent Mood) including but not limited to:

· correspondence to and from Ms Doudar;

· memoranda;

· emails;

· file notes;

· incident reports;

· statements;

· intelligence information;

· tape recordings, CCTV or other surveillance footage.

2. Any documentation or information (including but not limited to file notes, memoranda, emails, incident reports, statements, audio or video footage and intelligence information) held relating to Ms Doudar's visit to MRRC on 26 May 2010.

3. Any documentation (including but not limited to file notes, memoranda, emails, incident reports, statements, audio or video footage and intelligence information) relating to the decision to ban Ms Doudar from visiting corrective services facilities for 3 months in July 2009 as referred to in the letter dated 11 June 2010 from Superintendent Mood to Ms Doudar.

4. Any documentation (including but not limited to file notes, memoranda, emails, incident reports, statements, audio or video footage and intelligence information) relating to the steps taken to "identify" Ms Doudar or investigate the provenance of contraband allegedly discovered in property left for Mr Abdulrahman as referred to in the letter dated 19 July 2010 from Superintendent Mood to Ms Doudar.

5. The "intelligence information" referred to in the letter dated 11 June 2010.

6. The "protected intelligence information" referred to in the letter dated 19 July 2010.

1. A number of documents has been produced by the Defendant but on 14 June 2011 the Crown Solicitor's Office wrote to the Plaintiff's solicitors saying this:

I give notice of 2 documents, falling within categories 1, 5 and 6 of the Notice to Produce for Inspection dated 25 May 2011 have not been produced, namely:

1. NSW Department of Corrective Services, Corrections Intelligence Unit, information report.

2. NSW Department of Corrective Services, Corrections Intelligence Unit, information report.

These documents are each subject to a claim for public interest immunity.

The letter went on to say that the Crown Solicitor was awaiting instructions concerning 3 additional documents which may also be subject to a claim for public interest immunity.

1. The 2 documents described in identical terms in that letter have elsewhere been identified as:

(1) intelligence report 1037.09 dated 2 July 2009, and

(2) intelligence report 032.RMPC dated 17 July 2009.

1. On 16 June 2011 the Crown Solicitor's Office wrote again to the Plaintiff's solicitors saying this:

In my letter of 14 June 2011, I indicated that I was awaiting instructions concerning two additional documents falling within category 3 of the Notice to Produce, which may be the subject of a claim for public interest immunity.

I am now instructed to produce redacted copies of those documents, which are described in the attached Schedule and are enclosed. The information that has been removed from those documents is privileged information within the meaning of that term in the Dictionary to the Uniform Civil Procedure Rules 2005. I give notice that these documents have not been produced in full as they are subject to a claim for public interest immunity.

I also refer to your email dated 15 June 2011, in which you requested production of two documents referred to in the File Note signed by Barry Mood dated 10 June 2010. Barry Mood's file note of 10 June 2010 refers to "intelligence reports 1037.09 and 032.OMPC dated 2 July 2009 and 17 July 2009 respectively".

In my letter of 14 June 2011 I gave notice that two NSW Department of Corrective Services Corrections Intelligence Unit Information Reports had not been produced and were subject to

a claim for public interest immunity. I am instructed to confirm that the Information Report numbers of these two documents are 1037.09 (dated 2 July 2009) and 032.OMPC (dated 17 July 2009). Accordingly, consistent with my letter of 14 June 2011, these documents have not been produced.

The 2 redacted documents are an Incident Report of 18 July 2009 prepared by Assistant Superintendent Cunningham and a file note of 20 July prepared by Superintendent Mood.

1. The Plaintiff seeks production of the 2 redacted documents in unredacted form and the 2 Intelligence Reports dated 2 July 2009 and 17 July 2009.

1. The Defendant has filed and relied upon 2 affidavits of Superintendent Michael Hovey from Corrective Services. One of these affidavits is an open affidavit and the other is a confidential affidavit which contains a confidential exhibit MH1. In the open affidavit Mr Hovey says that objection is taken to production of the unredacted form of the reports on the basis that those materials relate to a matter of State. He objects to the production of the Intelligence Reports because he says that they must remain confidential in order for the good order and management of the correctional system being maintained.

1. The open affidavit deals with the matter of good order and management of correctional centres. It relevantly says this:

[10] The maintenance of order at correctional centres is possible only through constant monitoring by staff of the inmates, their associations, activities, habits, and so forth. Only by maintaining accurate and detailed systems for containing this information are staff able to identify possible threats, including unlawful behaviour (such as systems for introducing contraband items), planned acts of violence, or associations between inmates formed for the purpose of exerting influence over other inmates.

[11] If the Commissioner's intelligence holdings were subject to disclosure it would significantly restrict his ability to maintain discipline and good order within the correctional centres under his management, and accordingly would interfere with his ability to carry out his statutory duties.

1. I have also read the additional reasons for which non-disclosure is sought in the confidential affidavit and I have perused the documents in the confidential exhibit MH1. The Plaintiff accepts that it is appropriate that a confidential affidavit and the relevant documents be provided to the Court and says it is appropriate that the Court should inspect the documents to see whether they attract the immunity claimed: Commonwealth v Northern Land Council [1993] 176 CLR 604 at 617 and 620, and see also DPP v Smith (1996) 86 A Crim R 308 at 310 and National Crime Authority v Gould (1989) 23 FCR 191 at 198.

The basis for any immunity

1. The Plaintiff submitted that s 130 Evidence Act 1995 applied in the circumstances with the result that it must first be determined if the withheld information relates to "matters of state" and thereafter a balancing exercise is to be performed between the public interest in admitting the information into evidence and the public interest in preserving secrecy or confidentiality in relation to the information.

1. The Defendant submitted that the matter had to be judged by the common law because s 130 was not enlivened in the present case. The Defendant said that it is s 131A of the Evidence Act that enlivens the operation of s 130. Section 131A provides:

131A Application of Part to preliminary proceedings of courts

(1) If:

(a) a person is required by a disclosure requirement to give information, or to produce a document, which would result in the disclosure of a communication, a document or its contents or other information of a kind referred to in Division 1, 1A, 1C or 3, and

(b) the person objects to giving that information or providing that document,

the court must determine the objection by applying the provisions of this Part (other than sections 123 and 128) with any necessary modifications as if the objection to giving information or producing the document were an objection to the giving or adducing of evidence.

(2) In this section, disclosure requirement means a process or order of a court that requires the disclosure of information or a document and includes the following:

(a) a summons or subpoena to produce documents or give evidence,

(b) pre-trial discovery,

(c) non-party discovery,

(d) interrogatories,

(e) a notice to produce,

(f) a request to produce a document under Division 1 of Part 4.6.

1. The Defendant submitted that nothing in the present case required the disclosure of information or a document. This was because the Notice to Produce was said to be served pursuant to UCPR 21.10. Rule 21.11 provides:

(1) Unless the court orders otherwise, party B must, within a reasonable time after being served with a notice to produce:

(a) produce for party A's inspection such of the documents or things referred to in the notice ( other than privileged documents ) as are in party B's possession, and ... (emphasis added)

1. The Defendant submitted that the Rule carved out privileged documents (documents for which public interest immunity are claimed fall within that definition found in the Dictionary to UCPR) with the result that the Notice to Produce did not require production of the privileged documents. That meant there was no disclosure requirement within the meaning of s 131A(2) until an order was made on the Notice to Produce that the documents must be produced.

1. The significance of the distinction between common law principles and s 130 concerned whether the balancing exercise required by s 130(1) is required to be undertaken if common law principles are applied.

1. If there is any distinction between the common law principles and the test to be applied under s 130 it is irrelevant for the purposes of the present claim. In a case where the claim is made simply on the basis that the identity of an informer is at stake, Cain v Glass (No. 2) (1985) 3 NSWLR 230 may be thought to be authority for the balance having been struck by virtue of the claim being made on that basis. However, the open affidavit filed on behalf of the Defendant does not identify the claim as being based on the protection of the identity of an informer. It is necessary, therefore, even if the matter was to be determined on common law principles, to engage in the balancing act.

1. In any event, I reject the Defendant's submission that nothing in the present case required disclosure of information or a document. It is question-begging to assert that the particular documents are carved out from production under r 21.11 because until it is determined whether or not the documents have public interest immunity, and are therefore privileged documents, they are not carved out. In the first instance they are required to be produced. Accordingly, the matter must be considered in terms of s 130 Evidence Act .

Do the documents concern "matters of state"?

1. Section 130(4) sets out, in a non-limiting way, the circumstances in which information or documents may be taken to relate to matters of state. The relevant matters for the purpose of the present application are paragraphs (c), (e) and (f).

1. The Plaintiff places some weight on what was said by the Victorian Court of Appeal in State of Victoria v Brazel [2008] VSCA 37 that there was no recognised category of public interest immunity defined in terms of the maintenance of security and safety within prisons (at [19]) and that it was not sufficient to assert that the proper functioning of a government agency was in the public interest because that could be said about any government department or agency (at [25]), and that there is no 'public order' category of public interest immunity defined in terms of 'endangering public peace, order and safety' (at [26]).

1. However, the Court accepted that that a narrow claim of public interest immunity could properly be maintained with respect to specific prison security information which was shown to be both current and highly sensitive (at [27]).

1. In Nicopoulos v Commissioner for Corrective Services [2004] NSWSC 562 Smart AJ considered that public interest immunity could apply to documents and information relied upon by the Commissioner to exclude a solicitor from visiting rights to correctional centres.

1. The need to maintain effective law enforcement is a category of public interest immunity. This has been made clear in relation to the police: Young v Quin (1985) 4 FCR 483 at 495; Attorney-General for NSW v Stuart (1994) 34 NSWLR 667 at 675 and 690. It is appropriate to apply those principles, by analogy, to investigations of wrongdoing within the prison system.

1. It seems to me that the open affidavit of Mr Hovey could not deal with matters concerned with the maintenance of order at correctional centres with greater specificity than it does without disclosing the documents and information over which the immunity is now claimed. I accept that that has the unfortunate effect for the Plaintiff that the Plaintiff does not know precisely the more limited basis upon which the evidence is relied to claim the immunity. However, based upon the further material in the confidential affidavit of Mr Hovey paras 8 to 13 and 16 to 18, and the confidential exhibit MH1, I am satisfied that the information and documents relate to matters of state within the meaning of one or more of those 3 paragraphs referred to. The material goes beyond the mere maintenance of order, security and safety within the prison system. I am also satisfied that the intelligence reports, although dated 2009, remain relevant at June 2010 and, indeed, up to the present time.

The balancing exercise

1. It is then necessary to carry out the balancing task mandated by s 130(1) in the light of the matters listed in sub-s (5) and other matters which may be relevant. The relevant paragraphs for consideration are (a) and (c).

1. Two matters seem to me to be of considerable significance in performing the balancing exercise. First, the proceedings in respect of which the information and documents are sought are proceedings for judicial review of an administrative decision. They are not proceedings where the Plaintiff is being prosecuted for a criminal offence and her defence of the prosecution is hampered by the withholding of the material. In saying that, I do not suggest that the matter of substance complained of by the Plaintiff in the proceedings is not of any significance to her and, for that matter, to her husband and to her children. I note, in that regard, the report from the Plaintiff's general practitioner about the effects of the ban on the Plaintiff. It is, however, a matter of less significance, perhaps, than the position where she might need the information to prove her innocence if she were being prosecuted for something.

1. Secondly, the Plaintiff is not in the position where she does not know the basis upon which she was excluded from visiting the facilities. She was told that clearly in the letters of 11 June 2010 and 19 July 2010. Further, although only a passing reference was made to the incident in July 2009 involving the Plaintiff (in the letter of 11 June 2010), the circumstances of that incident were set out in the Statement of Reasons for Decision served in about July 2011. How the incident of July 2009 was said to be relevant to her exclusion in 2010 was also explained in those reasons.

1. The Plaintiff is not, therefore, in a position where her ability to prosecute her Summons for judicial review is hampered because she does not know the basis upon which the decision was made. All that she is deprived of knowing is whatever further information is contained in the material in respect of which the public interest immunity has been claimed. Whilst the absence of that material may disadvantage the Plaintiff to some extent, the extent of the information and material made available cannot be said to provide any insuperable difficulty in her being able to answer the allegations that are affectively made in the material which has been disclosed.

1. Although the withholding of the information does result in some procedural unfairness to the Plaintiff the principles justifying it are discussed by Smart AJ in Nicopoulos at [100]-[109]. When they are applied to the present case, bearing in mind the information that is available to the Plaintiff, his Honour's statement at [100] that procedural fairness had been "elided to nothing" is not an apt description of the position here. In one sense Nicopoulos was a stronger case for the Plaintiff because the solicitor's practice and livelihood was severely affected by the exclusion made by the Commissioner. That is not so in the present case where the matter affected is the continuing personal relationship between the Plaintiff and her husband and, to some extent, their children with their father. That is not to say that the personal relationship is not a matter of significance, and I have already made reference to the report of the Plaintiff's general practitioner. However, the ban in the present case is for a limited period (cf Nicopoulos ) and the Plaintiff's livelihood is not at stake.

1. In my opinion, given the importance of the material and documents the subject of the claim, the 2 factors which I have mentioned lead me clearly to the view that the claim for public interest immunity must be upheld.

Conclusion

1. I make the following orders:

(1) Order that the Defendant is not required to produce in answer to the Notice to Produce of 25 May 2011 or otherwise:

(a) intelligence report 1037.09 dated 2 July 2009;

(b) intelligence report 032.RMPC dated 17 July 2009;

(c) an unredacted incident report of F Cunningham, Assistant Superintendent, dated 18 July 2009;

(d) unredacted file note of B Mood, Superintendent dated 20 July 2009.

(2) Order that the confidential affidavit of Michael Allen John Hovey sworn 5 July 2011 and confidential exhibit MH1 are not to be made available to any person apart from the Defendant and his legal advisors without the leave of a judge of the Court.

(3) Dismiss the Plaintiff's Notice of Motion filed 24 June 2011.

(4) Order that the Plaintiff pay the Defendant's costs of the Notice of Motion.

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Decision last updated: 29 July 2011