England and McGarat
[2007] FamCA 1697
•30 November 2007
FAMILY COURT OF AUSTRALIA
| ENGLAND & MCGARAT | [2007] FamCA 1697 |
| FAMILY LAW – PRACTICE AND PROCEDURE – SUBPOENA – Subpoena seeking information from Commissioner of Police regarding mother’s possible involvement in Witness Protection program – Public interest immunity claimed by Commissioner of Police |
| Family Law Act 1975 (Cth) R v Nixon(Question of Law Reserved) (2000) 181 ALR 747 |
| APPLICANT: | Ms England |
| RESPONDENT: | Mr McGarat |
| FILE NUMBER: | ADF | 384 | of | 2005 |
| DATE DELIVERED: | 30 November 2007 |
| PLACE DELIVERED: | Adelaide |
| JUDGMENT OF: | Burr J |
| HEARING DATE: | 20 November 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Horvat |
| SOLICITOR FOR THE APPLICANT: | Ginny Giorgio & Associates |
| COUNSEL FOR THE RESPONDENT: | Ms Lee |
| SOLICITOR FOR THE RESPONDENT: | Croydons |
INDEPENDENT CHILDREN’S LAWYER: | Mr Reynolds |
| COUNSEL FOR COMMISSIONER OF POLICE FOR STATE OF SOUTH AUSTRALIA: | Ms Fuda |
Orders
That the subpoena filed on 24 October 2007 directed to and served upon the Commissioner of Police for the State of South Australia (“the Commissioner”) be set aside and discharged.
That the envelope and confidential contents supplied by the Commissioner bearing the signature of Dawe J and dated 25 October 2007 be uplifted from the Court file and forthwith returned to the Commissioner.
IT IS NOTED that publication of this judgment under the pseudonym McGarat & England is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADF 384 OF 2005
| MS ENGLAND |
Applicant
And
| MR MCGARAT |
Respondent
And
INDEPENDENT CHILDREN’S LAWYER
REASONS FOR JUDGMENT
The parties in this matter have competing applications before the court seeking parenting orders in relation to their children, S born in July 1993, N, born in March 2000 and L born in March 2002. I am listed to hear the trial in this matter on 21 January 2008. The current matter before me for determination relates to a subpoena issued by the mother to the Commissioner of Police, in which the mother seeks the production of material relating to her possible involvement in the witness protection program.
On 27 June 2007 the mother attended upon Dr P, psychiatrist, for the purpose of a psychiatric assessment. In a report dated 4 July 2007, Dr P commented (paragraph 12a): -
“[The mother]’s assertion that her life, that of [the father] and indirectly her children, is in real danger from [the father]’s associates in the growth, production and distribution of drugs.
[The mother] indicated to me that ‘there are some things that you just cannot write about’. Her behaviour in respect of [the father] and the children seems either excessively anxious and overdetermined or vindictive and punitive. The reports by Ms [S] show that [the father] is capable of looking after the two boys (at least) and is quite positive about him at best.
However, if it were the case that [the mother] had been able to provide details of [the father]’s contacts, customers and associates for police intelligence and she had been advised by them to move and keep secret her address and whereabouts from [the father], then her actions would be considerably more appropriate. It is therefore important to determine the reality of her assertion that she has been considered for a witness protection program because of the information she has been able to provide for the police.”
On 24 October 2007 the mother caused to be filed a subpoena addressed to the Commissioner of Police. The subpoena sought that the Commissioner give evidence and produce documents regarding:
“Information that might negate or support the statement of Dr [P] in paragraph 12 of his report dated 4th July 2007 as follows: ‘…It is therefore important to determine the reality of her ([the mother]’s) assertion that she has been considered for a witness protection program because of information she has been able to provide for the police’.”
The Commissioner of Police objects to the provision of the information sought by subpoena on the basis of the relevant provisions of the Witness Protection Act 1996 (SA) which prohibit such disclosure, and also on the basis of a claim of public interest immunity.
On 25 October 2007 Justice Dawe received from Counsel for the Commissioner of Police a confidential affidavit sealed in an envelope, which was only to be opened by a Judge. This envelope has remained sealed.
On 20 November 2007, Ms Fuda, Counsel for the Commissioner of Police provided submissions in relation to the subpoena.
Witness Protection Act 1996 (SA)
The Witness Protection Act 1996 (SA) governs the protection of witnesses who may be under threat or in danger of harm. The South Australian Act is in essence “…complementary to the Witness Protection Act 1994 (Cth) and follows a scheme somewhat akin to the process erected by that statute. It constitutes a portion of what is a more or less uniform national legislative scheme.” (See R v Nixon(Question of Law Reserved) (2000) 181 ALR 747 per Olsson J at paragraph 25).
Pursuant to s 21 of the South Australian Act, it is an offence for a person, without lawful authority, to disclose information about the identity or location of a person who is or has been a participant in a witness protection program or that compromises the security of such a person. It is also an offence for a person who is or has been a participant, or who has undergone an assessment for inclusion into a witness protection program, to disclose the fact they are or were a participant or any information regarding the program.
Section 23 of the Witness Protection Act outlines that the Commissioner, members of the police force and prescribed authorities cannot be required to disclose information:
(1) Subject to subsection (3), the Commissioner, a member or a prescribed authority cannot be required—
(a)to produce in a court, or before a tribunal, a Royal Commission or an approved authority, any document that has come into the custody or control of the person in the course of, or because of, the performance of functions or duties under this Act; or
(b)to divulge or communicate to or before such a body any matter or thing that has come to the notice of the person in the performance of functions or duties under this Act, except where it is necessary to do so for the purpose of carrying the provisions of this Act into effect.
(2) Subject to subsection (3), the Police Complaints Authority cannot be required—
(a)to produce in a court, or before a tribunal, a Royal Commission or an approved authority, any document that has come into the custody or control of the person in relation to this Act; or
(b)to divulge or communicate to or before such a body any matter or thing that has come to the notice of the person in relation to this Act, except where it is necessary to do so for the purpose of carrying the provisions of this Act into effect.
Subsection 23(3) of the Witness Protection Act, however, provides an exception to this prohibition on disclosure:
(3) If it is essential to the determination of legal proceedings under or in relation to a law of this State that the judicial officer presiding over the proceedings be advised of—
(a)the fact that a person is a participant in a witness protection program; or
(b)the location and circumstances of a participant in a witness protection program,
a person referred to in subsection (1) or (2) must disclose the relevant information to the judicial officer in chambers, but the person must not disclose the information if any person other than the judicial officer and the judicial officer's associate or clerk is present.
(4)The judicial officer must not disclose any information disclosed to the judicial officer under subsection (3) otherwise than in accordance with this Act.
Pursuant to s 25, the identity of a witness protection program participant is not to be disclosed in court proceedings.
Submissions of Commissioner of Police
The Commissioner of Police objects to the provision of the information sought by the subpoena on the basis of the secrecy provisions contained in the Witness Protection Act, and claims public interest immunity.
Counsel for the Commissioner of Police submitted s 23 of the Witness Protection Act is applicable to these proceedings to the extent that the subpoena seeks material to support Dr P’s assertions and possibly confirm the identity of a witness protection program participant. It was submitted that no witness may at law be asked whether they are an informer or asked a question which may disclose they are an informer (Attorney- General [UK] v Briant (1846) 15 M & W 168 and Cain v Glass (No 2) (1985) 3 NSWLR 230 at 246-7) This is reflected in the provisions of the Witness Protection Act.
In support of the Commissioner’s claim of public interest immunity, it was submitted that disclosure of the information sought in the subpoena would, if it existed, be contrary to the general public interest and that it is well recognised that the production of documents which tend to reveal the identity of informers is generally exempt on public interest grounds.
Counsel for the Commissioner contended a confidential affidavit can be considered by the court in the determination of an immunity claim (on the authority of R v Beibic (unreported, delivered 27 May 1982), NCA v Gould (1989) 90 ALR 489, R v Rusmanto (1997) 6 NTLR 68, [13], R v Mokbel [2005] VSC 410 and R v Benbrika (Ruling no. 3)[2007] VSC 283) and that any reasons for judgment in relation to the immunity claim, to the extent necessary, could be contained in a confidential judgment or confidential annexure to the judgment of the Court (referring to R v Smith (1996) 86 A Crim R 208).
Public Interest
In addition to the legislative provisions previously outlined, the Commissioner has also claimed public interest immunity applies to the material sought by the mother.
Pursuant to public interest immunity the court may limit access to information where the public interest against disclosure outweighs the need for disclosure to ensure justice,[1] usually on grounds of national security or matters of State. (See Sankey v Whitlam (1978) 142 CLR 1)
[1] Ligertwood, A Australian Evidence, 4th ed, LexisNexis Butterworths Australia, 2004, 350
Gibbs ACJ stated in Sankey v Whitlam (supra) at 38:
"The general rule is that the court will not order the production of a document, although relevant and otherwise admissible, if it would be injurious to the public interest to disclose it. However the public interest has two aspects which may conflict. These were described by Lord Reid in Conway v. Rimmer (64) as follows: 'There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done.' It is in all cases the duty of the court, and not the privilege of the executive government, to decide whether a document will be produced or may be withheld. The court must decide which aspect of the public interest predominates, or in other words whether the public interest which requires that the document should not be produced outweighs the public interest that a court of justice in performing its functions should not be denied access to relevant evidence.” (Emphasis added)
The common law position is now enacted in s 130 of the Evidence Act 1995, with regard to matters of State.
In R v Alister (1983) 50 ALR 41, the High Court outlined that in determining the issue of public interest immunity, the court needs to balance:
“The nature of the injury which the nation or public service would be likely to suffer, and the evidentiary value and importance of the documents in the particular litigation.” (Gibbs CJ at 44)
Discussion
The provisions of the Witness Protection Act prevent the disclosure of information relating to a possible participant in a witness protection program.
The Full Court of the Family Court addressed the issue of witness protection in a family law context in T v F, The Commissioner of the Australian Federal Police and the Children’s Representative (1999) FLC 92-855. This case stated to the Full Court concerned whether the Family Court has the power to make parenting orders and compel the giving of evidence in light of the Witness Protection Act 1994 (Cth). The Full Court made observations regarding the evidentiary limitations under the Commonwealth Witness Protection Act, particularly s 26 of the Act (which is analogous to s 23 of the South Australian Act) and raised concerns regarding a Judge receiving and relying on evidence which is not disclosed to the parties. The Full Court commented at 86,108:
“By operation of s 26 of the WPA, the Court is prohibited from compelling the divulgence of any information which the Commissioner does not wish to be divulged save for the exceptions contained in s 26(3) of that Act. It is our view that it is difficult to see when that exception could ever be relied upon.
51. The essential element of our judicial system is that save in the most exceptional circumstances, such as those outlined in Alister's case, justice is to be transparent. Persons affected by a judicial decision are entitled to know what the evidence is that the court is relying upon and are entitled to test that evidence. The provisions of s 26(3) fundamentally traverse across an essential element of our judicial system. They provide that the witness may give evidence in secret to the tribunal and that the tribunal may not then disclose the nature of that evidence to any person.
52. Such restrictions present significant difficulties for the judicial process and bring to mind the concerns expressed in Official Solicitor v K [1965] AC 201.
….
55. It is also difficult to see how an appellate court could deal with the decision based on such evidence. How would the appellate court know what evidence the trial Judge relied upon? How would the appellate court be able to say whether or not that evidence ought to have been relied upon or given the weight that it was given?
56. In our view whilst the ideals which drove to the enactment of s 26(3) are sound, namely that there are cases in which it will be necessary for the Court to hear evidence before it can properly carry out its duties with respect to children, but that there is a necessity to preserve the secrecy of that evidence, the vehicle chosen by parliament to meet those exigencies appears to be an inappropriate one. Whether indeed it was within the Constitutional competence of the Federal parliament to enact ss 26(3) and (4) is a matter than can await determination in another case.”
The court recognised, however, on the authority of Northern Territory of Australia v GPAO (1999) FLC 92-838 that the Family Court is sometimes required to make decisions relating to the welfare of children without being in full possession of all relevant material (at 86,109):
“57. The concept of the Family Court having to make decisions relating to the welfare of children without being in full possession of all relevant material is not an alien one. It was reinforced recently by the High Court in the Northern Territory of Australia v GPAO (1999) FLC ¶92-838; 24 Fam LR 253 where the majority of the Court held that Northern Territory legislation which protected the divulgence of information in welfare department files was not to be overridden by the paramountcy principles contained in s 65E of the FLA: see also Relationships Australia v Pasternak (1996) FLC ¶92-699; 20 Fam LR 604; Centacare Central Queensland v G and K (1998) FLC ¶92-821; 23 Fam LR 476.
58. Whilst the Court may be faced with an almost impossible dilemma in a case where the Commissioner seeks to withhold material from the Court which may be germane to the decision that the Court has to make, nevertheless the Court has to do the best that it can in the circumstances. As already indicated it should give appropriate weight to the expressions of risk as identified by the Commissioner, but at the same time, those expressions of risk cannot be, of themselves, determinate of the outcome of the proceedings. It may be that because of them the Court ultimately reaches the same conclusion as the Commissioner, but the ultimate power lies within the Court and not within the Commissioner to determine whether an order for parental responsibility or welfare of a child should be made and, if so, the nature of that order.”
In the unreported decision of M & O [2001] FMCAfam 107 Hartnett FM had before her Honour a similar factual scenario to this case. The father issued a subpoena to the Chief Commissioner of the Victoria Police, seeking the production of, inter alia, all documents, books, photos, evidence and other items relating to the applicant mother’s possible involvement in the witness protection program. Counsel for the Commissioner for Police sought the subpoena be set aside on the basis of public interest immunity and the relevant sections of the Witness Protection Act 1991 (Vic). It was submitted that production of the documents could compromise the safety of the mother and adversely affect the integrity of the witness protection program. The father argued that the documents were crucial to the Court’s determination as to the interim placement of the children, who may be at risk in the mother’s care.
Counsel for the Police Commissioner proposed that a confidential affidavit could be prepared detailing the matters sought. Of this proposal, Hartnett FM stated at paragraph 9 of her Honour’s reasons:
“I am not inclined to adopt a course wherein an affidavit, confidential as to its contents, be relied upon by the Court. As an essential element of our judicial system, the parties affected by any determination which I may make, are entitled to know what it is by way of evidence that the Court is relying upon and furthermore and importantly, they are entitled to test that evidence.”
Hartnett FM accepted the Commissioner’s submission that the Victorian witness protection legislation precluded the Commissioner from releasing the information sought by the father, referring to Northern Territory of Australia v GPAO (1999) FLC 92-838.
Hartnett FM also turned to the question of public interest and the exclusion of evidence as contained in s 130 of the Evidence Act 1995. In concluding the production of documents should not be made Hartnett FM stated:
17.It is a matter for the Court to balance the public interests referred to in s.130(1) of the Evidence Act. Nevertheless, substantial weight needs to be given to protect informers and keep Police sources of information confidential and it would usually be the case that the public interest in preserving such confidentiality will outweigh any countervailing public interest [R v Abdullah (1999) NSW CCA 188.]
18.In this case, the public interest in preserving the confidentiality of matters pertaining to the wife’s participation in the Witness Protection Program significantly outweighs the public interest in admitting into evidence any such matters. Although the Court’s task when determining matters relating to the welfare of the children, the subject of these proceedings, is made more difficult by not being in full possession of all relevant material, this nevertheless will not preclude the Court from determining the outcome of the proceedings.
19.As a result of the existence of the State legislation and public interest privilege, I find that production of the documents as subpoenaed by the father should not be made and that accordingly the subpoena should be set aside.
Turning to the claim of public interest immunity in this case, the public interest in the preservation of the integrity of the witness protection program and safety of the participants in the program must be weighed against the need for the evidence sought by the mother to be before the court and against the best interests of the children. On this issue, in the context of making parenting orders, the Full Court stated in T v F (supra) at 86,107:
“If in this case there is truly a conflict between making orders which would in the opinion of the Court advance the welfare of the children on the one hand, and, on the other hand, jeopardising or somehow detracting from the protection which the Commissioner seeks to provide to a witness within the protection scheme, then the Court needs carefully to weigh up the competing interests but it may, if it ultimately determines so to do, give priority to the former interest over the latter.”
In this case, as identified by Hartnett FM in M & O (supra), the public interest in the preservation of confidentiality regarding the mother’s possible involvement in the witness protection scheme, and the integrity of the witness protection program generally, outweighs the need for the material the subject of the subpoena to be before the court. It is important that the integrity of the witness protection scheme is upheld to protect informers and encourage people to continue to provide such information (See D v National Society for the Prevention of Cruelty to Children [1978] AC 117 at 218). I am also satisfied (and it was conceded by the Independent Children’s Lawyer, Mr Reynolds) that there is sufficient other material available to which the court can have regard in determining the best interests of the children, absent any material provided by the Commissioner of Police regarding the mother’s possible involvement in a witness protection program. On the basis of both the relevant Witness Protection legislative provisions and the public interest immunity claimed by the Commissioner, production and disclosure of the information sought in the subpoena is not appropriate and the public interest in confidentiality should be preserved.
Counsel for the Commissioner referred me to a number of authorities regarding the use of confidential affidavits to determine a public interest immunity claim. However I do not consider it necessary to have regard to the confidential affidavit provided on behalf of the Commissioner in this case. There is therefore no reason for me to provide any reasons in a confidential judgment or confidential annexure, an option proposed by Ms Fuda.
On the issue of the court receiving such evidence relating to the mother’s possible involvement in a witness protection program, (possibly pursuant to s 23(3) of the Act) I note the concerns expressed in various courts, including the Full Court of this Court, regarding a court’s reliance on confidential affidavits and material to which the parties are not privy. Authorities indicate that save for exceptional circumstances, persons affected by a judicial decision are entitled to know what the evidence is that the court is relying upon and are entitled to test that evidence. (see T v F, The Commissioner of the Australian Federal Police and the Children’s Representative (supra) at 86,108).
As already indicated, there is sufficient material available to the court without having regard to information pertaining to the mother’s possible involvement in a witness protection program. I do not consider that the absence of the material the subject of the subpoena will preclude the Court from determining the outcome of the proceedings. I therefore do not consider it necessary or appropriate to have regard to confidential information provided to the court. I also note the comments made by the Full Court in T v F that “[t]he concept of the Family Court having to make decisions relating to the welfare of children without being in full possession of all relevant material is not an alien one”, as established in Northern Territory of Australia v GPAO(1999) FLC 92-838.
I certify that the preceding thirty two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Burr.
Associate
Date: 30 November 2007
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