Gee v Magistrates Court of South Australia
[2004] SASC 315
•1 October 2004
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Application for Judicial Review)
GEE v MAGISTRATES COURT OF SOUTH AUSTRALIA & ANOR
Judgment of The Full Court
(The Honourable Justice Nyland, The Honourable Justice Gray and The Honourable Justice Besanko)
1 October 2004
ADMINISTRATIVE LAW - JUDICIAL REVIEW AT COMMON LAW - EXCESS OF POWER AND DEFECTIVE USE OF POWERS - IN GENERAL
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - POSSESSION - FOR SALE OR SUPPLY
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - MISCELLANEOUS PRACTICE CASES
Application for judicial review - applicant charged with knowingly taking part in the sale of methyl amphetamine to another person - identity at issue - prosecution rely on evidence of lay witnesses to establish identity - preliminary examination conducted by magistrate pursuant to Part 5 Division 2 of the Summary Procedure Act 1921 (SA) - prosecution sought to tender witness statements from a witness known only as 'X1' - identity of witness 'X1' not disclosed to the applicant - magistrate received witness statements of 'X1' into evidence for purpose of preliminary examination.
Applicant sought orders in nature of certiorari quashing orders made by magistrate; orders in nature of prohibition prohibiting magistrate from further hearing the preliminary examination; declarations that the magistrate's orders constituted jurisdictional error and that the applicant was denied natural justice and procedural fairness; and orders disqualifying the magistrate on the grounds of apprehended bias.
Discussion of preliminary examination procedure and process - consideration of public interest immunity - whether jurisdictional error occurred - consideration of principles of natural justice - consideration right to know the case put against an accused - consideration of bias - held that receiving witness statements of X1 did not constitute jurisdictional error or a breach of procedure - public interest in ensuring the court has access to all relevant evidence - no breach of natural justice - no grounds establishing bias - application for judicial review dismissed.
Controlled Substance Act 1984 (SA) s 32(1(d); Summary Procedure Act 1921 (SA) s 104, s 106; Justices Amendment Act 1991 (SA); Witness Protection Act 1996 (SA); Magistrates Court Rules 1992 r 20, referred to.
Haydon v Magistrates Court & Anor (2001) 87 SASR 448; Sankey v Whitlam (1978) 142 CLR 1; Goldsmith v Newman & SA (1992) 59 SASR 404 at 410; Webb & Hay v Queen (1994) 181 CLR 41; Johnson v Johnson (2000) 201 CLR 488; Livesey v NSW Bar Associate (1983) 151 CLR 288; R v Harry: Ex parte Eastway (1985) 39 SASR 303; Barton v The Queen (1980) 147 CLR 75; Shannon v Ackland (1991) 55 SASR 125; Fuller v Field (1995) 66 SASR 1; D v National Society for the Prevention of Cruelty to Children [1978] AC 171; R v Lewes Justice; ex parte Home Secretary [1973] AC 388; R v Smith (1996) 86 A Crim R 308; Craig v State of South Australia (1995) 184 CLR 163; R v Hughes [1986] 2 NZLR 129; R v Stipendiary Magistrate at Southport; ex parte Gibson [1993] 2 Qd R 687; Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; R v Basha (1989) 39 A Crim R 337; Jarvie v Magistrates Court of Victoria [1995] 1 VR 84; Carter v Hayes SM & Anor (1994) 61 SASR 451; Re Ratten [1974] VR 201; R v Brown [1995] 1 Cr App R 191; Marks v Beyfus (1890) 25 QB 494; S v Metanomski (1993) 65 A Crim R 352; Smith v Illinois (1968) 390 US 129; Crull v Indiana (1989) 540 NE 2d 1195; People v Boyd (1990) 560 NYS 2d 15; People v Remfigo (1989) 150 AD 736; People v Rhodes (1989) 154 AD 2d 279; R v H and Others [2004] 2 Wlr 335; Nixon v Hayes [1999] SASC 372; R v Kennedy (1997) 94 A Crim R 34; R v Mazon (2000) 77 SASR 105; Johnson [1988] 1 WLR 1377; Blake (1993) 97 Cr App R 169; Young and Quin (1985) 59 ALR 225; Conway v Rimmer [1968] AC 910; R v Socialist Worker Printers & Publishers Ltd & Anor; ex parte Attorney General [1975] 1 QB 637; Attorney General v Leveller Magazine Ltd [1979] AC 440; House v The King (1936) 55 CLR 499; Vakuato v Kelly (1989) 167 CLR 568; IOOF Australia Trustees Ltd v SEAS SAPFOR Forests Pty Ltd & Ors (2000) 78 SASR 151; Kola v The District Court of South Australia [2001] SASC 268, applied.
WORDS AND PHRASES CONSIDERED/DEFINED
"Public interest immunity"
GEE v MAGISTRATES COURT OF SOUTH AUSTRALIA & ANOR
[2004] SASC 315Full Court: Nyland, Gray and Besanko JJ
NYLAND J: I agree that the application for judicial review should be dismissed for the reasons expressed by Gray J.
GRAY J:
Overview
This is an application for judicial review.
Pursuant to a grant of leave, Robert Gordon Gee seeks orders by way of judicial review in the nature of certiorari quashing orders made by a magistrate, and in the nature of prohibition prohibiting the magistrate from further hearing a preliminary examination concerning alleged drug offending. Declarations are sought that the magistrate’s orders constituted jurisdictional error, that the magistrate had denied Mr Gee natural justice and procedural fairness, that the magistrate had so conducted himself to give rise to an appearance of bias and for an order disqualifying him from further hearing the proceedings.
The application raises issues important to the administration of justice. Questions arise about the right of an accused to know the name of witnesses to be presented by the prosecution and the availability of a claim of public interest immunity.
Mr Gee is charged with taking part in the sale or supply of methyl amphetamines. The preliminary examination with respect to the alleged offence is part heard by a magistrate. During the course of the preliminary examination the magistrate admitted into evidence three statements of an unnamed witness identified as X1. In the statements X1 provided important circumstantial identification evidence linking Mr Gee to the offence. The statements do not disclose the name or any personal particulars of X1. Rulings of the magistrate relating to the statements are the subject of challenge and this application for judicial review.
The application for judicial review is brought against the Magistrates Court. That court has agreed to abide the order of this court and has not advanced any submissions. The Director of Public Prosecutions has been joined as a party and opposes the application.
The approach to be followed by the court when considering an application for judicial review was discussed in Haydon v Magistrates Court & Anor[1] where Doyle CJ observed:
This Court does not sit on appeal from a Magistrate conducting a preliminary examination. The Court’s ability to interfere in the conduct of a preliminary examination is limited, and there are powerful reasons for the Court exercising those limited powers with restraint. But authority establishes that sometimes an error of law made by a Magistrate in the course of a preliminary examination will amount to a failure to exercise the jurisdiction conferred on the Magistrate. Such a failure may be remedied by an order by this Court requiring the Magistrate to exercise the jurisdiction. The relevant principle was stated as follows by Rich, Dixon and McTiernan JJ in R v War Pensions Entitlement Appeal Tribunal; ex parte Bott (1933) 50 CLR 228 at 242-243:
…
A writ of mandamus does not issue except to command the fulfilment of some duty of a public nature which remains unperformed. If the person under the duty professes to perform it, but what he actually does amounts in law to no performance because he has misconceived his duty or, in the course of attempting to discharge it, has failed to comply with some requirement essential to its valid or effectual performance, he may be commanded by the writ to execute his function according to law de novo, at any rate if a sufficient demand or request to do so has been made upon him. In the case of a tribunal, whether of a judicial or an administrative nature, charged by law with the duty of ascertaining or determining facts upon which rights depend, if it has undertaken the inquiry and announced a conclusion, the prosecutor who seeks a writ of mandamus must show that the ostensible determination is not a real performance of the duty imposed by law upon the tribunal. It may be shown that the members of the tribunal have not applied themselves to the question which the law prescribes, or that in purporting to decide it they have in truth been actuated by extraneous considerations, or that in some other respect they have so proceeded that the determination is nugatory and void. But the prosecutor who undertakes to establish that a tribunal has so acted ought not to be permitted under colour of doing so to enter upon an examination of the correctness of the tribunal’s decision, or of the sufficiency of the evidence supporting it, or of the weight of the evidence against it, or of the regularity or irregularity of the manner in which the tribunal has proceeded. The correctness or incorrectness of the conclusion reached by the tribunal is entirely beside the question whether a writ of mandamus lies. It is also beside the question that the determination, although not void, is yet one which, because of some failure to proceed in the manner directed by law, or of some collateral defect or impropriety, is liable to be quashed by a Court which on appeal, certiorari, or other process is competent to examine it. …
This statement of principle has often been referred to with approval, and I am bound by it. But the principle is one to be applied with some care. The principle is stated by reference to a distinction that can be elusive.
…
It is important that this Court should not erode the line between mere mistake within jurisdiction and a mistake which is such as to constitute a failure to exercise a jurisdiction.
[1] (2001) 87 SASR 448 at 452-453
Prosecution Case
Mr Gee is charged that on 5 June 2003 he knowingly took part in the sale of methyl amphetamine to another person, contrary to section 32(1)(d) of the Controlled Substances Act 1984 (SA). He is jointly charged with Lee Nathan Slater, Paul James McDonald and Kenneth Slater (‘the co-accused’). The particulars of the alleged offending are that Mr Gee and the co-accused, between 24 April and 6 May 2003 at Modbury North and other places, knowingly took part in the sale of methyl amphetamine to another person. Mr Gee was arrested and charged on 9 May 2003. The co-accused were committed for trial.
The prosecution allege that on 5 May 2003 at about 11.07am two uniformed police officers attended the Clovercrest Hotel at Modbury. They observed two white Holden Commodore vehicles parked along side each other facing in the same direction. The officers observed two men standing between the two vehicles transfer a large white plastic bucket from the rear left passenger side of one vehicle to the right rear passenger side of the other vehicle. The plastic bucket was found to contain 13.5 kilograms of methyl amphetamine paste in 15 separately packaged bags together containing 3.083 kilograms of pure methyl amphetamine.
The prosecution allege that when the officers approached the two men between the vehicles and asked them what they were doing one of the men replied ‘Going to the pub for a drink’. When asked what had been put in the back of the vehicle the same man replied ‘Nothing’. The men then walked towards the entrance of the hotel.
It is the prosecution case that the two men observed by the officers were Mr Gee and Mr Slater. To establish the identity of the men the prosecution rely upon the descriptions of the police officers and upon identification evidence of witnesses who observed two men running from the area of the Clovercrest Hotel at about the time when the police observed the transfer of the bucket containing the drugs.
Police officers subsequently attended at Mr Gee’s residential premises. They conducted a search of the premises and seized documents, a hard drive, and computer discs. Mr Gee was arrested and charged. He agreed to attend Holden Hill police station for an interview. Some time later Mr Gee was interviewed by police in the presence of his lawyer. The interview was video taped. Mr Gee refused to take part in an identification parade.
Bail Proceedings
On 9 May 2003 Mr Gee was refused police bail. On the same date he was granted bail by a magistrate of the Holden Hill Magistrates Court. Mr Gee’s release was deferred pending an application by the Director to review this decision. The application was heard in the Supreme Court 12 May 2003. The application was refused on 13 May 2003.
Mr Gee made further application for bail in the Magistrates Court. Bail was granted but Mr Gee’s release was again deferred pending an application by the Director to review the decision in the Supreme Court. On 25 June 2003 during the course of the review hearing, Detective Senior Constable Dewar of the Drug and Organised Crime Investigation Branch gave evidence. He was cross examined by counsel for Mr Gee about the circumstances in which the witness X1 provided statements to the police during the investigation of the alleged offence. The application was refused and Mr Gee was released on home detention bail.
The Preliminary Examination Proceedings
The preliminary examination has been conducted pursuant to the provisions of Part 5 Division 2 of the Summary Procedure Act 1921 (SA).
On 22 May 2003 the Commissioner of Police was served with a summons issued by Mr Gee requiring the production of all draft statements and notes relating to statements of any witnesses to be called by the prosecution.
On 5 June 2003 the Director disclosed a number of documents to Mr Gee, including an unsigned witness statement of X1 dated 11 May 2003 and a photographic identification procedure proforma document entitled ‘Photographic Identification - Conversation With Witness’ dated 11 May 2003. On 1 July 2003 the Director provided copies of these documents to counsel for Mr Gee.
Between 1 July and 27 November 2003 the Director filed and served witness statements and documentary material in purported compliance with section 104 of the Summary Procedure Act. The witness statements included two statements from the unnamed witness X1 dated 30 May and 14 October 2003, and a statement of Detective Dewar dated 26 June 2003.
On 24 July, 21 August and 16 October 2003 Mr Gee and the co-accused appeared before the Holden Hill Magistrates Court. The proceedings concerning Mr Gee were adjourned. On 3 December 2003 the preliminary examination of the charge against Mr Gee commenced. Mr Gee entered a plea of not guilty.
Counsel for the Director applied to tender all witness statements on which the prosecution relied as tending to establish the guilt of Mr Gee and which had been filed in court as at that date[2] pursuant section 106(1)(a) of the Summary Procedure Act. That subsection provides:
(1)Where a charge is not admitted by a defendant at a preliminary examination, the following procedure applies:
(a) the prosecutor will tender the statements and other material filed in the Court and the Court will, subject to any objections as to admissibility upheld by the Court, admit them in evidence;
[2]Between 25 June 2003 and 27 November 2003 the Director caused witness statements and documents to be filed in the Holden Hill Magistrates Court.
Counsel for Mr Gee opposed the tender of the witness statements from witness X1 dated 30 May and 14 October 2003. Objection was also taken to the tendering of the statement of Detective Dewar dated 26 June 2003.
Counsel for the Director conceded that the statements of X1 dated 30 May and 14 October 2003, which had been filed in court, were not in the form prescribed by the rules. The filed copies did not bear the true name of X1. Counsel applied for those statements to be received for the purpose of the preliminary examination pursuant to section 106(1)(a) of the Summary Procedure Act, and for the true identity of the witness to remain undisclosed to any person other than the magistrate conducting the preliminary examination.
In considering the above applications it was necessary for the magistrate to determine a claim of public interest immunity. Counsel for the Director applied for the Court to receive a sealed envelope containing a further signed statement of witness X1. Counsel had not viewed the contents of the sealed envelope but believed it contained statements in the name of X1 dated 30 May and 14 October 2003 and an affidavit of X1 setting out his or her reasons for not wanting his true identity to be disclosed to any person other than the magistrate. The envelope was provided to the magistrate in court by Detective Dewar. The application was opposed. Argument then took place as to whether the magistrate ought to inspect the contents of the sealed envelope.
The magistrate decided to inspect the contents of the sealed envelope and retired to do so. Upon returning to the bench the magistrate indicated that the contents of the sealed envelope were ‘unsatisfactory in their present form’ and declined to receive them. The envelope was re-sealed and returned.
Counsel for Mr Gee then provided the magistrate with notice seeking to have X1 presented for cross examination. The hearing was adjourned to 15 December 2003 for further argument, and to allow the Director to consider his position regarding the statements from X1.
On 12 December 2003 counsel for the Director provided counsel for Mr Gee with an unsigned copy of a further statement of X1. Counsel advised that the contents of the sealed envelopes had been inspected. Counsel applied for the court to receive two sealed envelopes said to contain the signed statements of X1, and to review their contents privately. Argument then took place as to whether the court should consider the evidence in private, uphold the claim of public interest immunity and admit the statements into evidence. After considering the contents of the envelopes, the magistrate ruled that it was appropriate to admit the statements of X1 into evidence.
The preliminary examination resumed on 16 December 2003. Counsel for Mr Gee applied to inspect the contents of the sealed envelopes containing the statements of X1. The magistrate refused this application. He reasoned:
In making my findings and ruling on Monday 15th December that there were appropriate public policy issues not to disclose the name and/or address of witness X1 I had regard to the contents of the statements which provided the witness’ name and a supporting affidavit being the reasons for non disclosure. I also had provided a transcript of evidence by Peter John Dewar in Supreme Court proceedings before Sulan J that provided comprehensive detail and public (sic) the reasons why witness X1 sought protection by non disclosure of name, address or any other means by which he/she could or would be identified. [Counsel for Mr Gee] today again referred to the procedure in Jarvie’s case namely the provision of affidavit and oral evidence called in support of the application. With the Victorian procedure I am mindful when I consider the remarks of Justice Brooking at pages 86 and 87 that application concerned police informers whereas I am dealing with a member of the public who does not fall into the category of police informer but in fact a witness who seeks anonymity and through anonymity some degree of protection albeit that protection will diminish when the witness is required to disclose his or her identity at the time of giving evidence.
The magistrate acknowledged the:
… [F]undamental right of Mr Gee, to know to the fullest extent, of the evidence that is alleged and the way that evidence will be led by Crown witnesses.
However, he concluded that the Director had complied with the provisions of the Summary Procedure Act 1921 and the relevant Rules and had correctly relied upon public policy immunity as an exception to an accused’s right to know the evidence against him or her.
When considering his ruling, the magistrate had access to the reasons why X1 sought to be protected by non disclosure. The magistrate acknowledged XI did not fall within the category of a police informer but rather was a witness who sought anonymity and protection through non-disclosure of identity. The magistrate had regard to the following observations of Stephen J in Sankey v Whitlam:[3]
A claim to Crown privilege has no automatic operation; it always remains the function of the court to determine upon that claim. The claim, supported by whatever material may be thought appropriate to the occasion, does no more than draw to the court's attention what is said to be the entitlement to the privilege and provide the court with material which may assist it in determining whether or not Crown privilege should be accorded. A claim to the privilege is not essential to the invoking of Crown privilege. In cases of defence secrets, matters of diplomacy or affairs of government at the highest level, it will often appear readily enough that the balance of public interest is against disclosure. It is in these areas that, even in the absence of any claim to Crown privilege (perhaps because the Crown is not a party and may be unaware of what is a court, readily recognizing the proffered evidence for what it is, can, as many authorities establish, of its own motion enjoin its disclosure in court. Just as a claim is not essential, neither is it ever conclusive, although, in the areas which I have instanced, the court's acceptance of the claim may often be no more than a matter of form. It is not conclusive because the function of the court, once it becomes aware of the existence of material to which Crown privilege may apply, is always to determine what shall be done in the light of how best the public interest may be served, how least it will be injured.
[3] (1978) 142 CLR 1 at 58
The magistrate refused the application that X1 attend for cross examination. He concluded that X1 had genuine grounds to seek anonymity at that stage of the proceedings. The magistrate referred to Goldsmith v Newman & SA where King CJ observed:[4]
While proof of facts by means of written statements without oral examination, is the norm, the decision as to whether special reasons exist for oral examination, should not be approached in an unduly restrictive way. Such decision should serve the purposes of the preliminary hearing and the interests of justice, including the establishment of the conditions for a fair trial in the trial court. They must be the paramount considerations.
…
It is hardly necessary to say that magistrates ought not to accept general assurances that oral examination is necessary, or mere expressions of hopes or expectations that something useful will emerge. They should insist on the disclosure of solid grounds for supposing that oral examination will make a significant contribution to the achievement of a fair trial. Much will depend in some cases on the efforts made by the defence to obtain disclosure of information from the prosecution and the prosecution’s response to such efforts. The success of the new system require that magistrates be active and perceptive participants in the process of establishing the conditions for a fair trial without burdening the justice system with protracted oral hearings.
Counsel for Mr Gee then requested the magistrate to state a case for determination by the Supreme Court. On 30 January 2004 counsel for Mr Gee abandoned the application for a case to be stated. However, counsel then applied for the magistrate to disqualify himself on the grounds of apprehended bias. This application was adjourned to 5 February 2004 for argument.
[4] (1992) 59 SASR 404 at 410 -411
On 4 February 2004 counsel for Mr Gee requested details of any prior convictions of X1. The Director duly provided an edited copy of a relevant offender history report.
On 2 March 2004 the magistrate refused to disqualify himself and published written reasons for his ruling. The magistrate had regard to Mason CJ and McHugh J’s decision in Webb & Hay v Queen[5] and the observations of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in Johnson v Johnson[6]. The magistrate summarised the test of apprehended bias as follows:
I will not continue to sit and hear this preliminary examination if in all the circumstances a fair minded lay observer with knowledge of the material and objective facts might entertain a reasonable apprehension that I might not bring an impartial and unprejudiced mind to the resolution of the issues.
The magistrate considered the decision of Mason, Murphy , Brennan, Deane and Wilson JJ in Livesey v NSW Bar Association where it was observed:[7]
In a case such as the present where there is no allegation of actual bias, the question whether a judge who is confident of his own ability to determine the case before him fairly and impartially on the evidence should refrain from sitting because of a suggestion that the views which he has expressed in his judgment in some previous case may result in an appearance of pre-judgment can be a difficult one involving matters of “degree and particular circumstances may strike different minds in different ways" (per Aickin J. in Shaw (1980) 55 ALJR, at p 16 ). If a judge at first instance considers that there is any real possibility that his participation in a case might lead to a reasonable apprehension of pre-judgment or bias, he should, of course, refrain from sitting. On the other hand, it would be an abdication of judicial function and an encouragement of procedural abuse for a judge to adopt the approach that he should automatically disqualify himself whenever he was requested by one party so to do on the grounds of a possible appearance of pre-judgment or bias, regardless of whether the other party desired that the matter be dealt with by him as the judge to whom the hearing of the case had been entrusted by the ordinary procedures and practice of the particular court. Once it is accepted that a judge should not automatically stand aside whenever he is requested so to do, it is inevitable that appellate courts, removed from the pressure of a possible need for immediate decision and enjoying the advantages both of hindsight and, conceivably, further material and information, will on occasion conclude that a decision of a judge at first instance that he should sit was mistaken and has resulted in a situation where one of the parties or a fair-minded observer might entertain a reasonable apprehension of bias or prejudgment. Such a conclusion does not involve any personal criticism of the judge at first instance or any assessment of his qualities or of his ability to have dealt with the case before him fairly and without pre-judgment or bias. It is simply an instance of the ordinary working of the appellate process in which the views of the judges who constitute the appellate court prevail over the views of the judge or judges who constituted the court from which the appeal is brought.
[5] (1994) 181 CLR 41
[6] (2000) 201 CLR 488
[7] (1983) 151 CLR 288 at 293
The magistrate emphasised his concern that the rights of the accused be rigorously upheld. However he held that that none of his previous statements or observations could be construed as biased. The magistrate reasoned:
Before moving to consideration of these and other authorities referred to by [counsel] I remind myself that I am conducting a preliminary hearing and that I have only received written statements, heard no evidence and made no findings.
…
The test is I repeat an objective test of what a fair minded observer would entertain as a reasonable apprehension of bias by me hearing this preliminary examination and after I have expressed my reasons on 16th December 2003. As stated in the authorities the fair minded observer is not expected to have a detailed knowledge of the law and/or the judicial process. An apprehension of bias must be firmly established.
…
I have heard both [counsel’s] submissions and reserved to carefully consider this important and serious application with the relevant authorities. I have reviewed all the material.
Throughout these proceedings I have been mindful of the need to ensure that I have given the DPP’s and [Mr Gee’s] application the most careful consideration. Parties will recall that on 3rd December I expressed considerable (that is probably an understatement) disquiet about the procedure adopted by [Counsel for the Director] and at a subsequent hearing I expressed approval that the DPP had decided to oversee the contents of the sealed envelope. I have refrained from making any findings on the contents of the sealed envelope. None of my statements and/or observations could be construed as bias at any time in these proceedings.
Counsel for Mr Gee applied for an adjournment to enable judicial review proceedings to be instituted. The preliminary examination was adjourned.
Preliminary Examination Process
The historical function and importance of the preliminary examination proceeding to the process of criminal justice was discussed to by King CJ in R v Harry; Ex parte Eastway:[8]
The question to be decided by the magistrate or justice at the conclusion of the preliminary examination is whether there is sufficient evidence to put the accused on his trial. Ensuring that the accused will not be put on trial without sufficient evidence to justify that course has been described by Gibbs ACJ and Mason J as the “principal purpose” of the preliminary examination: Barton v The Queen. But it is not the only purpose. The examination also serves the purpose of acquainting the accused with the case which is to be made against him at trial and of affording him an opportunity to question witnesses with a view to eliciting evidence which may assist the defence at trial. When discussing the consequences to an accused of depriving him of committal proceedings, Gibbs ACJ and Mason J in Barton’s case, pointed out that “in such a case the accused is denied (1) knowledge of what the Crown witnesses say on oath (2) the opportunity of cross-examining them”.
[8](1985) 39 SASR 203 at 208. See Barton v The Queen (1980) 147 CLR 75 per Gibbs ACJ and Mason J at 99, per Stephen J at 105. See also Shannon v Ackland (1991) 55 SASR 125 per Debelle J at 135-6 and the authorities cited therein.
In 1991 a new regime governing the conduct of preliminary examinations in South Australia was introduced by way of amendment to the Summary Procedure Act.[9] In Goldsmith v Newman[10] King CJ, observed that the remarks made in Harry remained valid, except insofar as they were the subject of inherent modification by the new regime. Four modifications made by the new legislative scheme were identified:
-proof of facts by means of the production of witness statements without the oral examination or cross-examination of those witnesses was now the norm. [11]
-issues of credibility are withdrawn from the court conducting the preliminary examination;
-issues of admissibility are to be left to the trial court and the evidence is to be admitted at the preliminary hearing unless admissibility is unarguable;
-oral evidence may be accepted if, but only if, ‘special reasons’ exist for permitting such evidence to be given
[9]See the Justices Amendment Act, 1991.
[10](1992) 59 SASR 404
[11]Prior to the amendments of 1991, a defendant could cross-examine a witness at a preliminary examination provided 7 days notice was given to the informant prior to the request to cross-examine being made in court, or, good reason existed for excusing the defendant from the requirement of giving notice. This was the regime that existed from 1972-1991. See Shannon v Ackland (1991) 55 SASR 125.
The requirements of Part 5 Division 2 of the Summary Procedure Act deal with the following discrete procedural steps:
-disclosure of the prosecution case and other material relevant to the charge that is available to the prosecution (s104(1));
-the procedure to be applied by a court conducting a preliminary examination (s105);
- the taking of evidence at the preliminary examination (s106), and
- the evaluation of that evidence (s107).
The above procedures are intertwined in their operation. Section 104 provides:
(1)Where a charge of an indictable offence is to proceed to a preliminary examination, the prosecutor must at least 14 days before the date appointed for the defendant's appearance to answer the charge—
(a) file in the Court in accordance with the rules—
(i)statements of witnesses for the prosecution on which the prosecutor relies as tending to establish the guilt of the defendant; and
(ii)copies of any documents on which the prosecutor relies as tending to establish the guilt of the defendant (other than documents that, in the opinion of the prosecutor, are only of peripheral relevance to the subject matter of the charge); and
(iii)a document describing any other evidentiary material (including documents of peripheral relevance that have not been filed in the Court) on which the prosecutor relies as tending to establish the guilt of the defendant together with a statement of the significance that the material is alleged to have; and
(iv)any other material relevant to the charge that is available to the prosecution; and
(b) give personally or by post to the defendant or a legal practitioner representing the defendant copies of all documentary material filed under paragraph (a).
(2)If material of the kind referred to above comes into the prosecutor's possession after the time appointed for filing in the Court and giving copies to the defendant or the defendant's legal representative, the prosecutor must comply with the above requirements in relation to that material as soon as practicable after it comes into the prosecutor's possession.
(3) A statement filed in the Court—
(a) must be in the form of a written statement verified by declaration in the form prescribed by the rules; and agreement).
Section 104(3) relates to material filed under section 104(1)(a)(i). A statement that does not comply with section 104(3), and which may not be in admissible form, may nevertheless be filed pursuant to section 104(1)(a)(iii) or (iv).
Section 106(1)(a) makes clear that on the hearing of the preliminary examination the prosecutor must tender the material filed in court in accordance with section 104(1). Section 106 provides:
(1)Where a charge is not admitted by a defendant at a preliminary examination, the following procedure applies:
(a) the prosecutor will tender the statements and other material filed in the Court and the Court will, subject to any objections as to admissibility upheld by the Court, admit them in evidence;
(b) the prosecutor will call a witness whose statement has been filed in the Court for oral examination if—
(i)the defence has given notice, in accordance with the rules, that it requires production of that witness; and
(ii) the Court grants leave to call that witness for oral examination;
(c) the prosecutor may, by leave of the Court, call oral evidence in support of the case for the prosecution;
(d) the defendant may give or call evidence;
(e) the prosecutor may call evidence in rebuttal of evidence given for the defence.
(2)The Court will not grant leave to call a witness for oral examination under subsection (1) unless it is satisfied that there are special reasons for doing so.
(3)In determining whether special reasons exist for granting leave to call a witness for oral examination, the Court must have regard to—
(a) the need to ensure that the case for the prosecution is adequately disclosed; and
(b) the need to ensure that the issues for trial are adequately defined; and
(c) the Court's need to ensure (subject to this Act) that the evidence is sufficient to put the defendant on trial; and
(d) the interests of justice,
…
(4)If a witness is called for oral examination the usual oath will be administered (unless the witness is not liable to the obligation of an oath) and the witness will be examined, cross-examined and re-examined in the usual manner.
Section 107 addresses the evaluation of evidence at preliminary examinations:
(1)The following principles govern the Court's approach to evidence at a preliminary examination:
(a) evidence will be regarded as sufficient to put the defendant on trial for an offence if, in the opinion of the Court, the evidence, if accepted, would prove every element of the offence;
(b) although the Court may reject evidence if it is plainly inadmissible, the Court will, if it appears that arguments of substance can be advanced for the admission of evidence, admit the evidence for the purpose of the preliminary examination, reserving any dispute as to its admissibility for determination by the Court of trial.
(2)If the Court, after completing its consideration of the evidence, is of the opinion that the evidence is not sufficient to put the defendant on trial for any offence, the Court will—
(a) reject the information; and
(b) if the defendant is in custody on the charges contained in the information (and for no extraneous reason)—order that the defendant be discharged from custody.
(3) if, after completing consideration of the evidence, the Court is of the opinion that the evidence is sufficient to put the defendant on trial for an offence—
(a) the Court will review the charges, as laid in the information, in order to ensure that they properly correspond to the offences for which there is, in the opinion of the Court, sufficient evidence to put the defendant on trial and make any necessary amendment to the information; …
Sections 107(1)(b) and 106(1)(a) indicate that the ordinary rules as to admissibility are to apply subject to the qualifications necessarily arising out of the provisions of the statute.[12]
[12]See Goldsmith v Newman (1992) 59 SASR 404 per King CJ at 408-9; Fuller v Field (1995) 66 SASR 1 per Cox J at 3, Matheson J at 22, per Perry J at 24; Haydon v Magistrates Court and Rofe (2001) 87 SASR 448 per Perry J at 465
Part 5 Division 2 of the Summary Procedure Act constitutes a procedural code governing the conduct of preliminary examinations. However, it does not extend to prescribing the conditions upon which material filed in accordance with section 104 will be admitted into evidence upon its tender in accordance with section 106.
Two issues that may arise for the consideration of a magistrate presiding over a preliminary examination when material is tendered in accordance with section 106(1)(a) are the authentication of the evidential material that may be presented by the prosecution upon the defendant’s trial, and the admissibility of the evidential material having regard to the rules of evidence.
The extent to which a magistrate will have to deal with these issues will depend upon the nature of the material filed. Where a prosecutor tenders a signed witness statement that in all respects complies with the Magistrates Court Rules, the declaration contained in the statement coupled with the signature that appears on each page serves to authenticate the statement as the evidence that the maker of the statement is prepared to give on the defendant’s trial. If the statement is unsigned it is not self-authenticating. Nevertheless, section 104(1)(a)(iii) and (iv) read in conjunction with section 106(1)(a) provide that it may be received by a magistrate at preliminary examination.
Whether or not a statement is received will depend upon it being authenticated. Part 5 Division 2 of the Summary Procedure Act does not prescribe any procedure or test for authentication save in relation to material falling within section 104(1)(a). Authentication remains a matter for the magistrate to determine.
Public Interest Immunity
Public interest immunity is a doctrine that may be invoked to prevent the disclosure of information, either in documentary or oral form, where to do otherwise would be injurious to the public interest. In Sankey v Whitlam Gibbs ACJ observed:[13]
[13] [1978] 142 CLR 1at 38-39
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, 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 function should not be denied access to relevant evidence.
In some cases, therefore, the court must weigh the one competing aspect of the public interest against the other, and decide where the balance lies. In other cases, however, as Lord Reid said in Conway v Rimmer, “the nature of the injury which would or might be done to the nation or the public service is of so grave a character that no other interest, public or private, can be allowed to prevail over it”.
Stephen J noted:[14]
That the task of a Court, in dealing with a claim to Crown privilege, is to weigh competing public interest is clear.
…
Relevant aspects of the public interest are not confined to strict and static classes. As Lord Hailsham of St Marylebone observed in D v National Society for the Prevention of Cruelty to Children “The categories of public interest are not closed …”. In that case their Lordships discerned an aspect of the public interest, hitherto unremarked and which was quite unconnected with the affairs of central government but which was nevertheless proper to weigh in the balance and which in the outcome sufficed to outweigh that other public interest which exists in there being available to the court the information necessary for it to do justice between litigants.
That case provides an illustration of the need to consider the particular nature of the proceedings in which the claim to Crown privilege arises in order to determine what are the relevant aspects of public interest which are to be weighed and what is to be the outcome of that weighing process.
[14](1978) 142 CLR 1 at 58
The categories of information that may be withheld from disclosure in accordance with public interest immunity are not closed.[15] The informer rule is a particular manifestation of the wider doctrine of public interest immunity.[16]
[15]Sankey v Whitlam (1978) 142 CLR 1 at 60, 103; D v National Society for the Prevention of Cruelty to Children [1978] AC 171 per Lord Hailsham at 230; see also R v Lewes Justices; ex parte Home Secretary [1973] AC 388
[16]Cain v Glass (No 2) (1985) 3 NSWLR 230 per McHugh JA at 246 citing D v National Society for the Prevention of Cruelty to Children at 218, 229-230, 232; Haydon v Magistrates Court of South Australia and Rofe per Perry J at 462-3; Smith (1996) 86 A Crim R 308 at 311
In Haydon Perry J, with whom Doyle CJ and Olsson J agreed, observed:[17]
In determining a claim of public interest immunity, the court undertakes a balancing exercise, weighing on the one hand the asserted public interest against disclosure against the public interest in ensuring that the court has access to all relevant evidence. As it was put by Gibbs CJ in Alister v The Queen:
Sankey v Whitlam establishes that when one party to litigation seeks production of documents, and objection is taken that it would be against the public interest to produce them, the court is required to consider two conflicting aspects of the public interest, namely whether harm would be done by the production of the documents, and whether the administration of justice would be frustrated or impaired if the documents were withheld, and to decide which of those aspects predominates. The final step in this process - the balancing exercise - can only be taken when it appears that both aspects of the public interest do require consideration - that is, when it appears, on the one hand, that damage would be done to the public interest by producing the documents sought or documents of that class, and on the other hand that there are likely to be documents which contain material evidence. The court can then consider the nature of the injury which the nation or the public service would be likely to suffer, and the evidentiary value and importance of the documents in the particular litigation.
[17] (2001) 87 SASR 448 at 463
When immunity from disclosure is ordered, the immunity only continues as long as the public interest continues to require non-disclosure.
Consideration of the Issues on Judicial Review
Jurisdictional Error
Counsel for Mr Gee submitted that the doctrine of public interest immunity with respect to the identity of lay witnesses who give evidence has been excluded by statute. It was submitted that the Summary Procedure Act and the Magistrates Court Rules provide a compulsory procedure for witness disclosure. It was said that this procedure cannot be departed from, and that these procedures excluded the common law principle of Public Interest Immunity. It was said that this was supported by the provisions of the Witness Protection Act 1996 (SA). This legislation was said to provide a comprehensive regime for witness protection. It was said to provide for non-disclosure of the identity of witnesses in specified circumstances and consequently displaced the common law doctrine of public interest immunity.
Counsel for Mr Gee asserted jurisdictional error. It was said the magistrate had no power to admit into evidence a witness statement filed in purported compliance with section 104 of the Summary Procedure Act that did not comply with section 104(3) of that Act or the Magistrates Court Rules. It was submitted the magistrate erred in ruling that it was appropriate to admit the signed statement of XI into evidence. It was said that the Director was required to disclose all witness statements to Mr Gee in the form prescribed under the Summary Procedure Act and the Magistrates Court Rules. Section 104 of the Summary Procedure Act and Rule 20 of the Magistrates Court Rules require all witness statements to be filed with the court and served on the defence, specifically requiring the names of all witnesses to be disclosed. It was submitted that the magistrate had no discretion to dispense with this requirement.
This submission should be rejected. The statements of X1 could be admitted pursuant to section 106(1)(a) of the Summary Procedure Act on the basis that they constituted material filed in accordance with sections 104(1)(a)(ii), (iii) or (iv). With respect to these sections King CJ observed in Goldsmith:[18]
Subparagraph (iii) authorises the filing and tendering of documents the contents of which would not be legally admissible under the ordinary rules of evidence although the admissibility of the contents would have to be ruled upon if objection were taken: see s106(1)(a). The intention appears to be to avoid unnecessary delays in a criminal case as a result of material relied upon by the prosecution, such as incomplete scientific tests or evidence of a witness who is not available to sign the statement at that stage, not at that time being available in a form which would be admissible under subpars (i) and (ii). The intention appears to be to enable such documents to go before the court on the preliminary examination subject to objections as to admissibility.
The magistrate had power to receive the statements of X1.
[18] (1992) 59 SASR 404 at 408
Further jurisdictional error was asserted. It was said that the Witness Protection Act had implicitly abrogated the power of the court to determine as a matter of public interest whether or not a witness’ identity should be disclosed.
Participation in a witness protection program is not mandatory where a witness does not wish his or her identity to be disclosed. The courts remain the protectors of the public interest. The courts have not been replaced by a system dependant upon the wish of a witness. In the event that a witness does wish to be involved in the program, participation is dependant upon the decision of the Commissioner of Police. Factors influencing the Commissioner extend beyond the public interest and are not necessarily consistent with it. It would be anomalous to suggest that the courts as protectors of the public interest have been replaced by a system dependant upon the discretion of the Commissioner with that discretion being exercised on broader grounds. As the Witness Protection Act does not exclude resort by the Commissioner to other viable methods of protecting a witness the conclusion may be drawn that it is not intended to be code.
The Witness Protection Act does not abrogate a court’s power at common law to determine whether or not a witness’ identity should be withheld in the public interest. There is nothing in the Witness Protection Act, either express or implied, that would suggest that it should to be given this effect.
Natural Justice
Counsel for Mr Gee submitted that the right of an accused to a fair trial excluded the operation of the doctrine of public interest immunity.[19] It was put that it was a fundamental breach of natural justice to deprive an accused person of the opportunity of testing the prosecution case. It was said that this included the right to confront an adverse witness.
[19]It was faintly argued by counsel for Mr Gee that the disclosure of the identity of the witness X1 at the preliminary examination was a fundamental right associated with the right to a fair trial and that the Constitution, in particular Chapter 3, provided protection of this right. However, no submissions were advanced to support this bare assertion. A majority of this Court took the view that this constitutional issue could not be said to arise in the present case.
It was contended by counsel for Mr Gee that the magistrate’s ruling to receive the statements of X1 amounted to a denial of procedural fairness and natural justice. It was submitted that there was no power to call an anonymous witness. The need to know the identity of witnesses to be called was said to be fundamental to the effective exercise of the accused’s right to cross examine. It was said that the decision in Jarvie v Magistrates Court of Victoria[20] upon which the Director relied did not bind South Australian Courts and should not be followed.
[20] [1995] 1 VR 84
There is no common law principle that a person charged with a criminal offence has the right to know his or her accuser. Mr Gee’s accuser is the Director. Correctly stated, the position is that the Director has a duty to disclose its case so that Mr Gee may know the case that he has to meet. This is a necessary corollary to the right to a fair trial.[21]
[21]Carter v Hayes SM & Anor (1994) 61 SASR 451 at 456; Re Ratten [1974] VR 201 at 214; Brown [1995] 1 Cr App R 191 at 198.
Counsel for the Director acknowledged the potential importance of X1’s true name to Mr Gee. Without this disclosure full and effective cross-examination could not be conducted.
The assessment of prejudice to Mr Gee is dependant upon the need to cross-examine a particular witness. This in turn depends to an extent upon the evidence given, together with the function that the evidence performs within the prosecution case. It is therefore not necessary for a defendant to have the true name of every witness in order to be able to properly defend himself. It follows that the disclosure of the true name of every witness for the prosecution is not an inviolate principle. The basis for the need to know the true name of a witness needs to be identified.
Haydon’s case involved an application for judicial review in respect of rulings made by a magistrate during the course of a preliminary examination. The issue related to the non-disclosure of the name of a police informer. It was observed that the informer privilege formed part of the doctrine of public interest immunity. In the circumstances of the police informer the court considered that in determining a claim for public interest immunity the court undertakes a balancing exercise, weighing on the one hand the aspect of public interest against disclosure, with the public interest in ensuring that the court has access to all relevant evidence.
In Jarvie v Magistrates’ Court of Victoria Brooking J observed:[22]
There is a public interest in preserving the anonymity of informers, since otherwise these wells of information will dry up and the police will be hindered in preventing and detecting crime; moreover, the public interest on which the need to protect informers rests is based in part on a regard for their personal safety, considered, not as a matter of expediency, but as an object in itself. The personal safety of the informer is both a means to an end and an end in itself. …
…
The anonymity of the undercover operative serves, as with the informer, to achieve two objects, and there is a public interest in the achievement of each of these. The first is the personal safety of the operative and his or her family, considered as an end in itself. The second is the preservation of the particular operative as a living and useful undercover police officer. Loss of anonymity could lead to death or injury and prevent or deter the operative from continuing to work as such.
…
If the matter is to be viewed as one of public interest immunity, as it seems to me it must, what is the test to be applied in ruling upon the claim to preserve the anonymity of the operative when called as a witness in criminal proceedings? The “balancing exercise” now so familiar in this and other fields of the law must be undertaken. On the one hand, there is the public interest in the preservation of anonymity, which the considerations I have mentioned underlie. On the other hand, there is the public interest that, whether the proceedings are a committal or a trial, the defendant should be able to elicit (directly or indirectly) and to establish all such facts and matters, including those going to credit, as may assist in securing a favourable outcome to the proceedings. There is also the public interest in the conduct by the courts of their proceedings in public. Publicity in the administration of justice is impinged upon if the identity of a witness is concealed. … But if it was determined that the public interest in concealing the identity of an undercover operative outweighed the public interest in preserving unimpaired the ability of a defendant to defend criminal proceedings, then I cannot imagine that the public interest in the administration of justice in public would be held to require disclosure of the identity.
The public interest in the ability of a defendant to elicit or establish facts which is to be weighed against the public interest in the anonymity of undercover operatives is but an aspect of the public interest that defendants in criminal cases shall have a fair trial (compare Sankey v Whitlam at 95-6 per Mason J) and that committal proceedings, which are important for the protection of the accused (Barton v R (1980) 147 CLR 75), shall be fairly conducted.
[22][1995] 1 VR 84 at 88-89
This reasoning places emphasis on the personal safety of the witness. This is a matter to be weighed in the public interest and applies to the identity of a proposed witness who has genuine grounds to fear for his or her safety.
The present circumstances raise similar public interest considerations to the category of the police informer. There is no reason why the public interest of the safety of the witness and the availability of the evidence cannot be weighed in considering the application for public interest immunity. As earlier observed the categories are not closed. The need of a defendant to know the true identity of a witness is an important matter to be weighed as part of the balancing exercise undertaken where a claim to public interest immunity is advanced.[23]
[23]Marks v Beyfus (1890) 25 QB 494 at 498 ; D v National Society for the Prevention of Cruelty to Children (supra) at 232; Sankey v Whitlam per Gibbs ACJ at 42, Stephen J at 62; Jarvie v Magistrates’ Court of Victoria at 89; Haydon v Magistrates Court of South Australia and Rofe at 457-8, 471.
During the preliminary examination process issues of credibility are withdrawn from the court.[24] The request to test the credibility of a witness before the magistrate cannot in the ordinary case amount to a special reason.[25] The fact that disclosure of the name of a witness whose credibility may be in issue at trial does not preclude the effective conduct of a preliminary examination. Whether or not the name should be disclosed at the time of the trial will depend upon the balancing exercise referred to in Sankey v Whitlam being undertaken at that time.
[24]This is a disadvantage of the committal regime that must be taken to be within the contemplation of the Parliament: S v Metanomski (1993) 65 A Crim R 352 per King CJ at 355
[25]Goldsmith v Newman per King CJ at 410
The position in the United States, where a defendant has the benefit of constitutional protection,[26] demonstrates the existence of the power and discretion to withhold the name of a witness prior to trial and up until the point where disclosure is made with sufficient time to adequately prepare for trial. A similar position has developed in the United Kingdom.[27]
[26]See the Sixth and Fourteenth Amendments to the United States Constitution
[27]Smith v Illinois (1968) 390 US 129 per White J at 133-4; Crull v Indiana (1989)540 NE 2d 1195; People v Boyd (1990) 560 NYS 2d 15; People v Remfigo (1989) 150 AD 736; People v Rhodes (1989) 154 AD 2d 279; R v H and Others [2004] 2 WLR 335; See also D Lusty, Anonymous Accusers : An Historical & Comparative Analysis of Secret Witnesses in Criminal Trials [2002] 24 Syd L R 361
No breach of the rules of procedural fairness has occurred in the present case. The magistrate exercised his statutory jurisdiction and determined the issue in accordance with established legal principles. He heard from the parties who were aware of the issue and had adequate time to prepare and to make submissions.
Natural justice does not require the inflexible application of a fixed body of rules. In this case, the nature of the preliminary examination, its intended purpose, and the manner in which it has been conducted, allows the conclusion that there has not been a breach of natural justice. A preliminary examination is not in the ordinary case concerned with issues of credit. An inability to test issues of credit cannot therefore prejudice a defendant nor amount to a denial of natural justice.[28]
Public Interest Immunity – The Exercise of Discretion
[28]Goldsmith v Newman; Nixon v Hayes [1999] SASC 372; R v Kennedy (1997) 94 A Crim R 34
Counsel for Mr Gee contended that, in any event, no basis for a claim for public interest immunity was established before the magistrate. It was said the magistrate failed to undertake the relevant balancing exercise or failed to engage in that exercise when finding that the public interest immunity claim had been made out. X1 was said to be the ‘lynchpin’ of the Director’s case. No other witness identified Mr Gee. It was claimed that no further identification evidence had been advanced. Counsel submitted that, in effect, Mr Gee was prevented from identifying his ‘chief accuser’ and from cross examining him in regard to credit. In addition, it was said that Mr Gee’s legal representatives were prevented from investigating the Director’s primary witness and were ‘hamstrung’ in the conduct of the preliminary examination.
Counsel for the Director accepted that the statements of X1 were not in a form prescribed by the rules of court. However, it was submitted that the magistrate correctly admitted those statements pursuant to section 106(1)(a) Summary Procedure Act.
Counsel for the Director emphasised that X1 was a real person who had used the pseudonym ‘X1’ instead of discharging their real identity. Counsel accepted that there were deficiencies in the statements of X1. With respect to the statement of the 30th May 2003, it did not bear name or signature. With respect to the remaining two statements, whilst they had used a true signature in signing the statements the signature was not legible and did not reveal X1’s true identity. Consequently, X1’s identity was not disclosed by any of the statements.
Counsel for the Director submitted that it was not in the public interest to reveal the identity of X1. It was contended that the resolution of the question of the public interest dictated whether or not the court could receive the statements of X1 and Mr Dewar without disclosing X1’s identity to the plaintiff, and whether or not the court should receive those statements in this case.
As earlier observed, counsel provided the magistrate with identical copies of X1’s statements save that they contained his true name and an affidavit from X1 setting out the reasons why he wished his identity to remain secret. The statements disclosing X1’s true identity were submitted as material relevant to the authentication of the statements made in the pseudonym ‘X1’ that had been filed pursuant to section 104 of the Summary Procedure Act. The affidavit of X1 was submitted in support of the claim for public interest immunity.
The magistrate upheld the claim to public interest immunity and ruled that it was appropriate to admit the statements of X1, that is the statements containing the pseudonym, into evidence. The magistrate did not publish separate reasons.
The magistrate’s reference to genuine grounds to seek anonymity ‘at this stage’ acknowledged a temporal qualification. That in itself was said to indicate an acceptance that the public interest in disclosure may prevail over the public interest in non-disclosure at trial.
It is also apparent from the reasons provided with respect to the application that he disqualify himself that he had engaged in the required balancing exercise when considering the claim to public interest immunity.
The availability of public interest immunity to a claim that certain evidential material, whether it be documentary or oral, be withheld from disclosure is not, and has never been, dependant upon evidential material falling within an identifiable class of evidential material, to which public interest immunity may apply.
Confidentiality strikes at the heart of the rationale justifying the non-disclosure of the names of police informers. The confidentiality of the identity of an informer ensures that sources of information remain available. In such cases, there is no need to justify a claim to public interest immunity.[29] Confidentiality is a trigger for a claim of public interest immunity in relation to police informers. It is the inability to act confidentially that poses the threat to the public interest. If confidentiality is not insisted upon then it is reasonable to conclude that the ongoing provision of information is not at risk by the informer’s identity being disclosed. Other examples of police investigation claims for public interest immunity include providers of police observation posts,[30] the disclosure of police methods[31] and victims of blackmail.[32]
[29] R v Mason (2000) 77 SASR 105 per Bleby J at 111-112.
[30] Johnson [1988] 1 WLR 1377, Blake (1993) 97 Cr App R 169
[31] Young and Quin (1985) 59 ALR 225; Conway v Rimmer [1968] AC 910
[32] R v Socialist Worker Printers & Publishers Ltd & Anor; ex parte A-G [1975] 1 QB 637, 605, A-G v Leveller Magazine Ltd [1979] AC 440 at 452,455, 471 Sankey v Whitlam per Gibbs ACJ at 38-39; see also Stephen J at 48-9, 60, Mason J at 95-6
In the present case evidential material to which public interest immunity was said to apply was identified by the fact that disclosure may be injurious to the public interest.
The basis for the claim in the present case was disclosed in the affidavit of X1 tendered within the sealed envelope marked ‘A’ and in the statement of Detective Dewar. The basis for the claim was the safety of the witness. If the risk to the safety of the witness is considered real, then the disclosure of that witness’ name may place the witness in jeopardy. The loss of the evidence of X1 to the prosecution case is something that is injurious to the public interest.
As earlier observed, although the magistrate did not provide separate reasons, it is apparent that he undertook a balancing exercise in determining the claim to public interest immunity. He had regard to the nature of the preliminary examination process and the issues then arising for conversation. He also made it clear that he was aware that further opportunity would arise, if Mr Gee were to be committed, to seek the disclosure of X1’s name and relevant personal particulars.
No error of principle has been identified in the magistrate’s approach, no error affecting the exercise of discretion has been demonstrated.[33] The discretion to receive the statements into evidence without the disclosure of the name of X1 was appropriate in the circumstances.
Bias
[33] House v The King (1936) 55 CLR 499
During the course of the preliminary examination the magistrate was called upon to determine a claim for public interest immunity, and determine an application for ‘special reasons’. A reasonable fair minded observer would regard the performance of those judicial functions by the magistrate as an application of the law to material properly laid before him, without making any findings of fact. No comment as to credit which could constitute a ‘live and significant’ issue in the determination of the preliminary examination was made.[34]
[34]Johnson v Johnson (2000) 201 CLR 41; Livesey v NSW Bar Association (1983) 151 CLR 288 at 293-294; Vakuata v Kelly (1989) 167 CLR 568 at 575; IOOF Australia Trustees Ltd v SEAS SAPFOR Forests Pty Ltd & Ors (2000) 78 SASR 151 at 173-176, 182-183; Kola v The District Court of South Australia [2001] SASC 268
In the circumstances no reasonable apprehension that the magistrate might not bring an impartial and unprejudiced mind to the continuation of the preliminary examination could arise.
Discretion to Grant Relief Sought
It is settled that the fragmentation of the criminal process by the institution of proceedings for judicial review is highly undesirable and should only be allowed in exceptional circumstances. The jurisdiction of the Supreme Court should not be used to supervise the interlocutory processes of a criminal trial.[35]
[35]Sankey v Whitlam (supra) per Gibbs ACJ at 25-26, 80 per Stephen J, 82-3 per Mason J; R v Iorlano (1983) 151 CLR 678; Yates v Wilson (1989) 168 CLR 338; Re Rozenes, Director of Public Prosecutions and Another; ex parte Burd and Others (1994) 120 ALR 193 per Dawson J at 195; Dimitropoulos v District Court of South Australia (1998) 199 LSJS 7 per Bleby J at 12
In Goldsmith v Newman King CJ observed:[36]
Committal proceedings are a preliminary step in the process of criminal justice. Generally speaking deficiencies in such proceedings can be remedied by pre-trial prosecution discovery of facts or documents or by appropriate action at the trial stage such as the permission of examination of witnesses in the absence of the jury. While magistrates are to be encouraged to conduct preliminary hearings in a way which will facilitate a fair trial and render voir dire hearings and other palliatives at trial unnecessary, both trial judges and those conducting prosecutions will have to be prepared to act reasonably to remedy any dangers to the fairness of a trial resulting from the new committal procedures. The intervention of this Court in its supervisory jurisdiction should be necessary, even where a legal basis for it exists, only in the rarest of circumstances.
[36] (1992) 59 SASR 404 at 412
Counsel for the Director contended that in the event that this court considered the magistrate has erred, relief other than declaratory relief should nevertheless be refused in the discretion of the court. Any error made by the magistrate would be cured in the normal course of the criminal proceedings. In particular, the public interest immunity claim will be revisited and a Basha[37] inquiry may be conducted prior to a jury being empanelled.
[37] R v Basha (1989) 39 A Crim R 337
Having regard to the earlier rejection of Mr Gee’s grounds of complaint it is unnecessary to resolve this issue. However, the opportunity for the revisiting of the issue later in the proceedings is a relevant consideration.
Conclusion
This application for judicial review should be dismissed.
BESANKO J: This is an application for judicial review brought by an accused who is charged with others on Information with the offence of knowingly taking part in the sale or supply of amphetamine, a drug of dependence, to another person contrary to s 32(1)(d) of the Controlled Substances Act 1984. The accused seeks orders in the nature of certiorari and prohibition in relation to decisions made during the course of a preliminary examination being conducted by a Magistrate under Part 5 Division 2 of the Summary Procedure Act 1921 (“SPA”) to determine if there is sufficient evidence to put the accused on trial for the offence with which he is charged. The preliminary examination has not been completed. It has been adjourned pending the outcome of these proceedings.
The plaintiff also seeks declarations that the decisions of the Magistrate which he challenges were made without jurisdiction and/or in breach of the rules of procedural fairness. However, it is not suggested that the claim for declarations enhances the power of the Court to make orders beyond the circumstances in which orders in the nature of certiorari or prohibition would be made. In other words, the grounds upon which this Court may intervene are the same whether the claim for relief be for orders in the nature of certiorari or prohibition or for declarations. I proceed on that basis.
The facts are set out in the reasons for judgment of Gray J, and I will repeat the facts only to the extent that it is necessary to do so to explain my reasons. I will refer to the accused as the plaintiff and the second defendant, the Director of Public Prosecutions, as the Director. The first defendant, the Magistrates Court of South Australia, took no part in the proceedings and has agreed to abide by the order of this Court.
It is convenient to start by identifying the decisions made by the Magistrate which are under challenge in this action.
The decisions of the Magistrate
The Magistrate admitted in evidence on the hearing of the preliminary examination three statements of a witness referred to as “X1”. The statements were dated 30th May 2003, 14th October 2003 and 12th December 2003 respectively. None of the statements contained the witness’ name, but rather the pseudonym X1. The second and third statements contained what was said to be the witness’ signature, but not in a form which revealed his/her identity. The first statement did not contain the witness’ signature. The circumstances surrounding the alleged offence and the nature of X1’s evidence as contained in his/her statements are set out in the reasons for judgment of Gray J and I will not repeat them. It is sufficient for present purposes to say the following. For ease of reference, I will assume that X1 is a male. In his statements, X1 states that he went to the police after hearing details of the incident on the radio the day after he made his observations. In his first statement, X1 states that he is prepared to attend court and give evidence in relation to the matter if necessary. In his third statement, X1 relates some details of his discussions with a police officer, Mr Peter John Dewar, wherein he expresses concern about his personal safety. In a statement of agreed facts it is agreed between the plaintiff and the Director that “the witness known under the pseudonym X1 is the only witness who purports unequivocally to identify the plaintiff. X1 is an important Crown witness”.
The Magistrate also admitted in evidence a statement of Mr Dewar dated 26th June 2003. Mr Dewar is a detective senior constable of police and his statement deals with the circumstances in which he took a statement from X1 and the circumstances in which X1 made an identification of the plaintiff from a number of photographs. Mr Dewar’s statement also contains details of statements made to him by the witness X1. X1 told Mr Dewar that he was willing to provide information but was extremely concerned about his personal welfare. He told Mr Dewar that the person he saw running from the scene was a person of very high criminal importance with extensive criminal contacts. X1 refused to allow his interview to be taped by video or audio equipment. X1 told Mr Dewar that he was very concerned and repeatedly stated that was very worried about his welfare if his identity was disclosed. X1 also told Mr Dewar that he was worried that an attempt would be made to intimidate him and use violence against him. X1 said that he was prepared to give evidence in court if required at a later time. Mr Dewar states that X1 was employed at the time he took the statement and had rejected witness protection assistance on the assurance that his identity was not revealed unless absolutely necessary.
In addition to his statement, the Magistrate had before him evidence Mr Dewar gave in a bail review hearing in this Court in June 2003. Mr Dewar’s evidence was to similar effect as his statement which I have already summarised. X1 told Mr Dewar that he was prepared to give evidence, but that he needed to be assured that his identity would not be disclosed until the last moment, if possible. Mr Dewar spoke to X1 about the witness protection program, but it was agreed that it was not a feasible option because of X1’s employment and domestic obligations.
The Magistrate received two sealed envelopes which contained the three statements of X1 with his true name and an affidavit by X1 setting out his reasons for not wanting his true identity to be disclosed to any person other than the Magistrate conducting the preliminary examination. The contents of the envelopes had been seen by the Director, but were not shown to the plaintiff or his advisers. I have not examined the contents of the sealed envelopes, although in the result the only material in those envelopes which I have not seen is the affidavit of X1, and that part of his statements which discloses his true identity. I do not think it is necessary for me to examine the contents of the sealed envelopes.
The Director claimed that the Magistrate should admit in evidence the three statements of X1 which I have previously identified without disclosure of his identity and that such a course was justified having regard to the doctrine of public interest immunity. The Magistrate upheld the claim for public interest immunity and, as I have said, he admitted the three statements of X1.
The plaintiff issued an application under s 106 of the SPA (see also r20.02 of the Magistrates Court Rules 1992) seeking the leave of the Court to call X1 for oral examination. That application for leave was opposed by the Director and, after hearing argument, it was refused by the Magistrate.
Some weeks later, the matter again came on before the Magistrate, and on that occasion the plaintiff asked the Magistrate to disqualify himself on the ground of apprehended bias. The Magistrate refused to disqualify himself. As I have said, the Magistrate then adjourned the preliminary examination pending the outcome of these proceedings.
There are three decisions of the Magistrate which are challenged by the plaintiff in these proceedings. First, the plaintiff challenges the decision of the Magistrate to receive the sealed envelopes and to admit in evidence on the hearing of the preliminary examination the three statements of X1 previously identified without disclosure of his name. Secondly, the plaintiff challenges the decision of the Magistrate to refuse leave to call X1 for oral examination. In relation to both these decisions, the plaintiff seeks an order in the nature of certiorari. Thirdly, the plaintiff challenges the decision of the Magistrate not to disqualify himself and in relation to this decision, the plaintiff seeks an order in the nature of prohibition.
The issues on the application
This action is not an appeal to this Court. It is an application for judicial review, and to succeed the plaintiff must make out one of the well-established grounds for judicial review (Craig v State of South Australia (1995) 184 CLR 163 at 175-176). The circumstances in which this Court on an application for judicial review will interfere with a preliminary examination are limited, and even if grounds for intervention are made out the Court retains a discretion to decline relief (Goldsmith v Newman (1992) 59 SASR 404 per King CJ at 412).
I will refer to the plaintiff’s submissions in due course, but it is convenient at this point to identify what I think are the four issues raised on this application. The first issue is whether the doctrine of public interest immunity is available in the case of a preliminary examination so as to support the non-disclosure to the plaintiff of the name of a witness whose statement is admitted in evidence. The second issue is, assuming the answer to the first question is yes, whether the Magistrate correctly applied the relevant principles for the determination of a claim for public interest immunity. The third issue is whether the Magistrate erred in deciding that leave to call X1 for oral examination should be refused in a way which can be corrected by this Court on an application for judicial review. The fourth issue is whether the Magistrate erred in declining to disqualify himself. The plaintiff submitted that the Magistrate erred in relation to the first three issues and that the errors went to jurisdiction. The plaintiff submitted that the Magistrate erred in relation to the fourth issue and that the error constituted a breach of the rules of procedural fairness.
The plaintiff also submitted that the Magistrate’s decisions in relation to the first two issues gave rise to a breach of the rules of procedural fairness. However, I do not think a separate question of procedural fairness is raised in relation to the Magistrate’s decision with respect to the first two issues. Procedural fairness considerations might lead one to conclude that the doctrine of public interest immunity should not be extended to support the non-disclosure of a witness’ name, or they might be the considerations in favour of disclosure when the balancing exercise required by the doctrine comes to be carried out, but I do not think a separate question of a breach of the rules of procedural fairness is raised.
Before turning to consider these issues, it is convenient to outline the Magistrate’s reasons for the three decisions under challenge.
The Magistrate’s reasons
The Magistrate gave his reasons for upholding the claim for public interest immunity at the same time as he gave his reasons for refusing leave for X1 to be called for oral examination.
In relation to the claim for public interest immunity, the Magistrate referred to “the fundamental right of the defendant to know to the fullest extent the evidence that is alleged and the way that evidence will be led by Crown witnesses”. The Magistrate referred to the decision of the Appeal Division of the Supreme Court of Victoria in Jarvie v Magistrates’ Court of Victoria at Brunswick [1995] 1 VR 84 (“Jarvie”). The Magistrate said that in considering the claim for public interest immunity he had regard to the statements of X1 wherein his name is disclosed, and to X1’s affidavit. He also had regard to Mr Dewar’s evidence on the bail review hearing. Importantly, the Magistrate said:
“With the Victorian procedure I am mindful when I consider the remarks of Justice Brooking at pages 86 and 87 that application concerned police informers whereas I am dealing with a member of the public who does not fall into the category of a police informer but in fact a witness who seeks anonymity and through anonymity some degree of protection albeit that protection will diminish when the witness is required to disclose his or her identify at the time of giving evidence.”
The Magistrate said that the right of a defendant facing serious criminal charges was “not lessened by the fact that the proceedings were being heard in the Magistrates Court prior to committal for trial in a higher court”. The Magistrate referred to the decision of the High Court in Sankey v Whitlam (1978) 142 CLR 1. The Magistrate said that he was satisfied and that he found that X1 had genuine grounds to seek anonymity at that stage of the proceedings.
In relation to the claim for leave to call X1 for oral examination, the Magistrate referred to his decision on the claim for public interest immunity, but said that he treated the application as separate and distinct from that decision. The Magistrate referred to the decision of this Court in Goldsmith v Newman (supra) and to the relevant statutory provisions. The Magistrate concluded that special reasons did not exist for granting leave to call a witness for oral examination.
In relation to the application that he disqualify himself, the Magistrate referred to his earlier decisions and the legal principles for disqualification on the grounds of apprehended bias. It is not suggested by the plaintiff that the Magistrate misstated or misunderstood the relevant legal principles. The Magistrate said that he had refrained from making any findings on the contents of the sealed envelopes and he concluded that none of his statements and/or observations could be construed as bias at any time in the proceedings.
I turn now to consider the issues raised by the plaintiff’s application.
1. The doctrine of public interest immunity and Part 5 Division 2 of the SPA
At times, the plaintiff’s argument seemed to be that the doctrine of public interest immunity was not available in relation to a preliminary examination under Part 5 Division 2 of the SPA. At other times, the plaintiff’s argument was that the common law doctrine of public interest immunity should not be extended to include the non-disclosure of a witness’ name on the grounds that he or she feared for his or her personal safety. The issue for this Court is whether the doctrine of public interest immunity includes the non-disclosure of a witness’ name on the ground that he or she fears for his or her personal safety, and if so, whether the doctrine in that form applies to a preliminary examination under Part 5 Division 2 of the SPA.
The statutory provisions in relation to a preliminary examination which are relevant in this case are sections 104, 106 and 107 of the SPA. The relevant parts of those sections are set out in the reasons for judgment of Gray J and I will not repeat them.
The features of a preliminary examination under Part 5 Division 2 of the SPA were discussed by this Court in Goldsmith v Newman (supra) where King CJ said (at 410):
“The purposes and function of preliminary hearings of charges of indictable crimes was discussed in my reasons for judgment in R v Harry; Ex parte Eastway (supra) and it is unnecessary to repeat that discussion. What was there said remains valid subject to the modifications necessarily inherent in the new provisions. The new provisions have modified the purposes and function of preliminary hearings in three ways. First, proof of facts by means of statements in writing without oral examination or cross-examination has been made the norm. Secondly, issues of credibility are withdrawn from the court conducting a preliminary hearing. The test posed in s 107(1) for sufficiency of the evidence to put the defendant on trial is that ‘the evidence, if accepted, would prove every element of the offence’. It is no longer open to the court to refuse to commit on the ground that the evidence, although sufficient in law, is too weak or unsatisfactory, by reason of lack of credibility of prosecution witnesses, to justify putting the defendant on trial. Thirdly, issues of admissibility are to be left to the trial court and the evidence is to be admitted at the preliminary hearing unless admissibility is unarguable. Fourthly, oral evidence is to be allowed if, but only if, special reasons exist for permitting such evidence. Subject to those modifications, the purposes and function of a preliminary hearing, in the light of which the expression ‘special reasons’ must be understood, remain as discussed in R v Harry; Ex parte Eastway.”
The plaintiff does not challenge those observations.
The leading authority on the doctrine of public interest immunity is Sankey v Whitlam (supra). It is not necessary for me to repeat at any length the well-established principles of the doctrine. An order may be made that information be withheld from disclosure if the disclosure would be injurious to the public interest. However, the Court must weigh the non-disclosure of the information against the public interest in the proper administration of justice, and in particular, the need to ensure that the administration of justice is not frustrated by the withholding of information. A balancing exercise is required to determine which aspect of the public interest should prevail. In the context of documents, Gibbs ACJ in Sankey v Whitlam (supra) said (at 38 - 39):
“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 function should not be denied access to relevant evidence.”
It is clear that the categories of information which may be the subject of public interest immunity are not closed. The rule that in certain circumstances a witness may not be asked to disclose the name of an informer or if he himself is an informer, is, as Perry J observed in Haydon v Magistrates Court and Rofe (2001) 87 SASR 448 at 471, but one instance of the general principles applicable to a claim for public interest immunity.
The plaintiff does not challenge those principles.
The plaintiff submitted that the Magistrate did not have the power to admit in evidence a witness statement which did not disclose the name of the witness. He referred to s 106(1)(a) of the SPA and he submitted that the statements of X1 did not comply with the SPA or the Magistrates Court Rules. He referred to s. 104(3)(a) and rr 20.03 and 20.04. The plaintiff submitted that Part 5 Division 2 is a code for the conduct of a preliminary examination, and that there is no room for the doctrine of public interest immunity. The plaintiff referred to the Witness Protection Act 1996 (SA) and he submitted that the procedure under that Act was the only way X1 could obtain the protection he was seeking. The plaintiff submitted that X1 is an important witness and the fact that the plaintiff, who is facing a serious criminal charge, does not know his name would, if he was facing a trial, place him at a serious disadvantage. The plaintiff referred to a number of authorities which he said supported the proposition that the Magistrate erred in admitting the evidence of a witness whose name is not known to the plaintiff. He submitted that this Court should not follow the approach taken by the Appeal Division of the Supreme Court of Victoria in Jarvie. Jarvie extends public interest immunity to undercover police operatives. The plaintiff submitted that the Court should not follow the obiter dictum of Brooking J (at 99) that there is no reason the doctrine does not include “other witnesses whose personal safety may be endangered by the disclosure of their identity”. The plaintiff also submitted that there was a right at common law for an accused person to know his accuser.
It is correct to say that the witness statements of X1 which were admitted in evidence by the Magistrate did not comply with the requirements of the SPA and the Magistrates Courts Rules. Rules 20.03 and 20.04 provide as follows:
20.03 A statement referred to in s 104(3)(a) of the Act, must be verified as follows:
“This statement consisting of ………….. page/s signed by me is true to the best of my knowledge and belief. I know that this statement is to be used for the purpose of a prosecution and that if it contains material which I know to be false or misleading, I will be guilty of an offence.
Dated the …………… of ………… 19 …..
Signature ………………………………………
Witnessed by …………………… (name) of …………………… (address)
Signature of Witness ………………………….”
20.04 The documentary material required to be filed by the prosecution pursuant to sec 104 of the Act shall be:
(i) in triplicate
(ii) accompanied by a document:
(a) containing the names of the witnesses providing each statement;
(b) identifying exhibits and other evidentiary material.
Clearly, it is envisaged by these rules that the name of a witness will be disclosed , and I did not understand the Director to argue that the statements of X1 complied with the Act and Rules. However, the Director submitted that the statements could be admitted by reference to s 104(1)(a)(ii) (documents on which the prosecutor relies as tending to establish the guilt of the defendant) (iii) (a document describing any other evidentiary material) or (iv) (any other material relevant to the charge that is available to the prosecution). I think that proposition is correct, and is supported by authority. In Goldsmith v Newman (supra) King CJ said (at 408):
Subparagraph (iii) authorises the filing and tendering of documents the contents of which would not be legally admissible under the ordinary rules of evidence although the admissibility of the contents would have to be ruled upon if objection were taken: see s 106(1)(a). The intention appears to be to avoid unnecessary delays in a criminal case as a result of material relied upon by the prosecution, such as incomplete scientific tests or evidence of a witness who is not available to sign the statement at that stage, not at that time being available in a form which would be admissible under subpars (i) and (ii). The intention appears to be to enable such documents to go before the court on the preliminary examination subject to objections as to admissibility.
There is nothing in the provisions of Part 5 Division 2 which states that it is a code such that the doctrine of public interest immunity is not available. I turn now to examine the authorities referred to by the plaintiff.
In Smith v Illinois 390 US 129; 19 L Ed. 2nd 956 (1968) Stewart J said (at 131):
“In the present case there was not, to be sure, a complete denial of all right of cross-examination. But the petitioner was denied the right to ask the principal prosecution witness either his name or where he lived, although the witness admitted that the name he had first given was false. Yet when the credibility of a witness is in issue, the very starting point in ‘exposing falsehood and bringing out the truth’ through cross-examination must necessarily be to ask the witness who he is and where he lives. The witness’ name and address open countless avenues of in-court examination and out-of-court investigation. To forbid this most rudimentary inquiry at the threshold is effectively to emasculate the right of cross-examination itself.”
Smith v Illinois (supra) was a case where at trial the principal prosecution witness was not required to give his true name in circumstances where the only real question at the trial was the relative credibility of the witness and the accused.
In R v Hughes [1986] 2 NZLR 129 the New Zealand Court of Appeal was called upon to decide whether an undercover police officer could be required to reveal his true identity at the trial of a person for the offence of dealing in cannabis. A majority of the Court of Appeal decided that the true identity of a person who acted as an undercover police officer will normally be relevant to credibility and the true identity of the witness must be disclosed to the defence as a starting point for an inquiry into the witness’ credibility.
Richardson J said (at 148 – 149):
“We would be on a slippery slope as a society if on a supposed balancing of the interests of the State against those of the individual accused the Courts were by judicial rule to allow limitations on the defence in raising matters properly relevant to an issue in the trial. Today the claim is that the name of the witness need not be given: tomorrow, and by the same logic, it will be that the risk of physical identification of the witness must be eliminated in the interests of justice in the detection and prosecution of crime, either by allowing the witness to testify with anonymity, for example from behind a screen, in which case his demeanour could not be observed, or by removing the accused from the Court, or both. The right to confront an adverse witness is basic to any civilised notion of a fair trial. That must include the right for the defence to ascertain the true identity of an accuser where questions of credibility may be in issue. To seek information which is relevant in that sense cannot be regarded as vexatious or harassment. While a request for particulars of identify may be made at the trial itself it is perhaps more likely to have been made initially at depositions before Justices of the Peace or a District Court Judge or on an application before trial so as to allow appropriate inquiries to be made before trial. Subject to any specific legislation it is surely not the function of the Judge (or of the Justices) to erode those protections or to second-guess counsel and decide following some kind of judicial inquiry whether an accused actually has what the Judge regards as sufficiently substantial grounds for seeking the true identity of a witness or that in a ‘rare’ case a supposedly ‘minor’ intrusion on the right to confront a semi-anonymous accuser is justified in the interests of the State – and exceptions in ‘rare’ cases have a habit of becoming commonplace and one person’s ‘minor’ intrusion is another’s illustration of State tyranny and the denial of individual freedoms. I cannot presently perceive any circumstances at common law under which a witness whose credibility may be in issue depending on the results of inquiries should be allowed to hide his real name and in the result foreclose any inquiries of that kind.”
In R v Stipendiary Magistrate at Southport; ex parte Gibson [1993] 2 Qd R 687, the Full Court of Queensland was called upon to decide whether a Magistrate hearing committal proceedings had the power to order that an undercover police officer give his evidence under an assumed name and withhold his true identity from the Court. The Court decided that the Magistrate did not have the power to make such an order and that such an order would contravene the rules of natural justice. It is true, as the Director submitted, that the case dealt with the proper interpretation and application of statutory provisions (s 46 and s 47 Drugs Misuse Act, 1986 (Qld)), but at the same time the decision seems to have been made by reference to some broad propositions. Williams J said (at 691):
“If the true identity of the prosecution witness was not revealed then it would just not be possible for the defence to lead evidence indicating a disposition or propensity for that witness to act in an improper or irregular way with respect to investigations of the type under consideration. Further, if such an order were allowed to stand it would effectively deprive the defence of raising the kind of factual matters which provided the background to the decision of the Court of Appeal in Meek v Fleming [1961] 2 Q.B. 366.
Depriving an accused person of the opportunity of testing the prosecution case in such a way constitutes, in my view, a denial of natural justice. That is something which cannot be tolerated by the courts.”
As against these decisions there is the decision in Jarvie. The question in that case was whether a Magistrate hearing committal proceedings had the power to order that undercover police operatives be permitted to give evidence without disclosing their true names. The Court decided that the Magistrate had the power to make such an order. Brooking J delivered the principal judgment of the Court. He said that he could not conceive of circumstances in which an order could be made whereby the name and address would not be disclosed in confidence to the Court. However, disclosure might be withheld from the accused on the ground of public interest immunity. Brooking J noted (at 88) that the doctrine of public interest immunity applied to oral and documentary evidence and that the categories of public interest immunity are not closed. Brooking J said that the same public policy considerations which led to the acknowledgment of the protection of informers should also lead to a recognition of the protection of undercover police operatives as a matter of legitimate public concern. He said (at 88):
“There is a public interest in preserving the anonymity of informers, since otherwise these wells of information will dry up and the police will be hindered in preventing and detecting crime; moreover, the public interest on which the need to protect informers rests is based in part on a regard for their personal safety, considered, not as a matter of expediency, but as an object in itself: R v Hennessey (1978) 68 Cr. App. R. 419 at 425; Cain v Glass (No. 2) (1985) 3 N.S.W.L.R. 230 at 233-4 per Kirby P. The personal safety of the informer is both a means to an end and an end in itself.
The same considerations obtain with undercover police operatives. They form an increasingly important part of the resources available for the prevention and detection of serious crime. The anonymity of the undercover operative serves, as with the informer, to achieve two objects, and there is a public interest in the achievement of each of these. The first is the personal safety of the operative and his or her family, considered as an end in itself. The second is the preservation of the particular operative as a living and useful undercover police officer. Loss of anonymity could lead to death or injury and prevent or deter the operative from continuing to work as such. Loss of anonymity could also destroy or diminish the operative’s usefulness as such. In addition, personal violence against one undercover operative, or the risk of it which loss of anonymity creates, might cause others to stop working or to decline to be recruited as undercover operatives.”
Leaving aside for the moment the relevant statutory provisions, in my opinion there is no reason why the doctrine of public interest immunity does not apply in an appropriate case to support the admission in evidence at a preliminary examination of a witness statement where the name of the witness is not disclosed to the accused. The categories of public interest immunity are not closed and there is a clear public interest in terms of the administration of justice in protecting a witness and in ensuring as far as possible that he or she is not deterred from giving evidence by threats or initimidation.
In my opinion, there is nothing in the provisions of the SPA that suggests the doctrine, insofar as it authorises the non-disclosure of a witness’ name, is excluded. In fact, I think it is clear that the doctrine can apply bearing in mind the features of a preliminary examination under Part 5 Division 2 of the SPA identified by King CJ in Goldsmith v Newman (supra), and in particular, the fact that proof of facts by means of statements in writing without oral examination or cross-examination is the norm, and the fact that issues of credibility are withdrawn from the court conducting a preliminary examination. Nor is the possibility of anonymity under the Witness Protection Act a reason to conclude that the doctrine of public interest immunity insofar as it authorises the non-disclosure of a witness’ name does not apply under Part 5 Division 2. That Act involves a detailed procedure before a witness is included in a witness protection program and the decision is made by the Commissioner of Police. There is nothing in the Witness Protection Act which suggests that it is intended to exclude the application of the common law doctrine of public interest immunity to preserve the anonymity of a witness at a preliminary examination.
As to the plaintiff’s submission that there is a right at common law for an accused person to know his or her accuser, I agree with the submission made by the Director that the plaintiff’s accuser is the Crown, and that the plaintiff has a right to receive a fair trial and, speaking broadly for the moment, included within that right is a right to know the case against him which means that there are obligations on the Crown to make adequate disclosure.
In my opinion, the Magistrate had the power under the doctrine of public interest immunity to make the orders which he did.
2. The Magistrate’s decision to uphold the claim of public interest immunity
The plaintiff submitted that even if there was power to make the orders, the Magistrate erred in deciding that the claim of public interest immunity should be upheld.
The plaintiff referred to the following matters which he said established that the Magistrate erred in upholding the claim. In other words, the following matters supported disclosure of X1’s name.
1.The plaintiff said that there were a number of significant inconsistencies between the various statements of X1.
2.The plaintiff said that the Director will have to reveal the identify of X1 before the trial and the benefit of withholding disclosure at the preliminary examination stage is negligible or not significant.
3.The plaintiff said that it is unclear on the evidence whether X1 will not co-operate and give evidence if his identity is revealed.
There is force in these submissions, but I do not think they mean that the orders sought by the plaintiff should be made. On this application the plaintiff must show that the Magistrate committed the type of error amenable to judicial review. In other words, he must show a jurisdictional error or a failure to observe some applicable requirement of procedural fairness or fraud or an error of law on the face of the record. It was not argued that fraud or error of law on the face of the record are relevant in this case. I do not think there has been a breach of the rules of procedural fairness. Once the conclusion is reached that the doctrine of public interest immunity may apply, it was appropriate for the Magistrate to receive the material in the sealed envelopes to satisfy himself of X1’s true identity and that the statements were authentic and of the reasons for the order sought by the Director. There is no suggestion that counsel for the plaintiff was not fully heard on the question whether the claim for public interest immunity should be upheld.
The plaintiff’s challenge comes down to whether there was a jurisdictional error. In other words, can it be said that the Magistrate asked himself the wrong question or took into account, or failed to take into account, a matter relevant to the pre-conditions for the exercise of the power (Craig v South Australia (supra) at 177 - 178). In my opinion, the Magistrate did not err in a matter going to his jurisdiction. The Magistrate performed the balancing exercise that he was required to perform. He referred to the right of the plaintiff (which he described as fundamental) to know the evidence that the Director will lead against him. He referred to the expectation that justice will be open. On the other hand, he found that X1 had genuine grounds to seek anonymity at that stage of the proceedings. Significantly, he said that the protection of X1 will diminish when X1 will be required to disclose his identity at the time of giving evidence. This observation is significant because it indicates that the Magistrate was alive to the two competing public interest considerations, and he was suggesting by the observation that there is likely to come a time before trial when the identify of X1 will have to be disclosed. He referred to the “tensions” between the rights of the defendant and the non-disclosure of the identity of a witness. He referred to the fact that X1 was not a police informer, and that he was being asked to consider a different type of claim. I think the Magistrate must be taken to have formed the view that it could not be said at the stage of the preliminary examination that the disclosure of X1’s name may be of substantial assistance to the plaintiff (Haydon v Magistrates Court and Rofe (supra) per Doyle CJ at [33].
The plaintiff submitted that an order which had the effect of withholding disclosure of a witness’ name would only be justified if the information was given by the witness on a confidential basis, and that that condition was not satisfied on the facts of this case. He submitted that the basis of immunity in a case such as the present was analogous to the basis of the immunity in the case of an informer. The evidence I have examined would not support a finding that X1 said that he would only give evidence, either at the preliminary examination or at the trial, on condition that his identity was not disclosed to the plaintiff. However, I do not think that confidentiality is the only basis for public interest immunity. I think the personal safety of a witness is an end in itself to use the expression used by Brooking J in Jarvie (at 88). Furthermore, there is a public interest in witnesses to serious crimes not being dissuaded from giving evidence by threats or intimidation. Of course, there must be a solid basis in the evidence for concluding that the witness may be in danger and may be dissuaded from giving evidence, but none of that is to deny the power in an appropriate case to allow the non-disclosure of a witness’ name to an accused at a preliminary examination even in a case such as the present where it is inevitable or almost inevitable, that the witness’ name will be disclosed to the accused at some time in the future.
It is true that the Magistrate’s reasons are brief and I think there was a good deal to be said for finding that the public interest in disclosure outweighed the public interest in non-disclosure. In saying that, I am not suggesting that I would have reached a different conclusion from that reach by the Magistrate. Clearly the decision was not an easy one. However, the critical fact is that the Magistrate has not made an error amenable to judicial review.
It is convenient to summarise my conclusions in relation to the first two issues. The Magistrate is conducting a preliminary examination to determine if there is sufficient evidence to put the plaintiff on trial for the offence. For that purpose, witness statements and other material previously identified may be admitted in evidence. The norm is proof of facts by means of statements in writing without oral examination or cross examination, and issues of creditability are withdrawn from the court conducting a preliminary examination. An important witness for the prosecution fears for his safety if his identity is revealed although he seems to accept that at some stage his identity will be revealed. A finding has been made that there are genuine grounds for the witness’ fears. The fact is that it almost inevitable that his identity will be revealed before or at trial.
In my opinion, public interest immunity can apply in those circumstances because there is a clear public interest in the protection of witnesses so that they are not intimidated or threatened with the consequence that they may not give evidence. On the other hand, there is a clear public interest that the proper administration of justice shall not be frustrated by the withholding of relevant information. From the plaintiff’s point of view, the admission of the statements without revealing the witness’ identity means that he is not given relevant information at the earliest available opportunity, and he is not given the opportunity to ascertain information which might support an application to call X1 for oral examination.
Although I would accept that it will not often be appropriate to receive a statement without the name of the witness being disclosed to the accused, in my opinion it was open to the Magistrate to determine that the balance at the time of his decision was in favour of non-disclosure. Having regard to the features of a preliminary examination which I have previously identified, it cannot be said that the Magistrate erred in that he should have found that disclosure of X1’s name may be of substantial assistance to the plaintiff. It will be apparent from what I have said that it seems inevitable that the balance will swing in favour of disclosure as the date for trial approaches.
In my opinion, the Magistrate, in making the orders which he did, made no error amenable to judicial review.
3. The Magistrate’s decision to refuse leave to call X1 for oral examination
It was not argued that the provisions which gave the Court the power to grant leave to call a witness for oral examination (s 106) do not apply if the witness statements of X1 do not comply with the provisions of the Act and Rules, and are filed under s 104(1)(a)(ii)(iii) or (iv), rather than 104(1)(a)(i). I will proceed on that basis.
The relevant section of the SPA for the purposes of the decision whether to grant leave to call X1 for oral examination is s 106. The plaintiff must show special reasons for the granting of leave and the matters relevant to that issue are set out in s 106(3). In Goldsmith v Newman (supra) King CJ identified considerations relevant to the issue. He said (at 410 – 411):
“While proof of facts by means of written statements without oral examination, is the norm, the decision as to whether special reasons exist for oral examination, should not be approached in an unduly restrictive way. Such decision should serve the purposes of the preliminary hearing and the interests of justice, including the establishment of the conditions for a fair trial in the trial court. They must be the paramount considerations.
It may be helpful to magistrates to indicate some circumstances which may amount to special reasons.
1.It may appear that there is sound reason to suppose that some degree of cross-examination will eliminate possible areas of contention and refine the matters really in dispute.
2.Cross-examination may be desirable to establish important facts as the foundation of a defence or to eliminate any possibility of a particular defence. For example, it may be important to ascertain from witnesses in advance of trial whether the defendant showed signs of intoxication or irrationality at relevant times.
3.It may be necessary for a fair trial that the defence have a limited opportunity to explore in advance of trial key issues which may be relevant to possible defences such as bona fide claim of right or duress.
4. In some cases some limited questioning of scientific witnesses may be necessary to explore possible avenues of inquiry as to alternative hypotheses, or the need for further testing or analysis.
5.There may be reason for dissatisfaction with the extent of prosecution disclosure by filing statements and documents pursuant to s 104 or otherwise, and cross-examination may appear to be the best way to obtain such disclosure.
It is hardly necessary to say that magistrates ought not to accept general assurances that oral examination is necessary, or mere expressions of hopes or expectations that something useful will emerge. They should insist on the disclosure of solid grounds for supposing that oral examination will make a significant contribution to the achievements of a fair trial. Much will depend in some cases on the efforts made by the defence to obtain disclosure of information from the prosecution and the prosecution’s response to such efforts. The success of the new system requires that magistrates be active and perceptive participants in the process of establishing the conditions for a fair trial without burdening the justice system with protracted oral hearings.”
The plaintiff submitted that the Magistrate erred in a number of ways which showed that he did not apply the correct test. First, he erred in allowing himself to be influenced by his ruling on public interest immunity. I do not think the Magistrate did do this. He said that he treated the application for leave as separate and distinct from his decision in relation to public interest immunity. Secondly, it is said that the Magistrate erred in failing to give adequate or sufficient reasons for his decision. There is some force in this submission because after referring to the relevant statutory provisions and the decision of Goldsmith v Newman (supra) and the respective submissions of the parties, the Magistrate said that he refused the application for leave, presumably on the basis that there were no special reasons justifying the grant of leave. However, the Magistrate’s reasons are not so inadequate that there is an error of law for that reason.
The Magistrate clearly had jurisdiction to entertain and refuse the application for leave. There is no suggestion that in exercising that jurisdiction he asked himself the wrong question or took into account or failed to take into account a matter relevant to jurisdiction. Even assuming Wednesbury unreasonableness gives rise to an error going to jurisdiction it cannot be said that the decision of the Magistrate to refuse leave was so unreasonable that no reasonable Magistrate could have made the decision (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223).
I reject the challenge to the Magistrate’s decision to refuse leave to call X1 for oral examination.
4. The Magistrate’s decision declining to disqualify himself
The relevant legal principles are not in dispute. The issue is whether a fair minded observer with knowledge of the material objective facts might entertain a reasonable apprehension that the Magistrate might not bring an impartial and unprejudiced mind to the resolution of the issue namely, whether special reasons had been made out by the plaintiff, and whether there is a case to answer. (Johnson v Johnson (2000) 201 CLR 488 at 492).
The plaintiff submitted that there was a reasonable apprehension of bias on two grounds. First, the Magistrate received witness statements identifying X1 and yet those statements were not disclosed to the plaintiff. Secondly, the Magistrate received an affidavit of X1 which dealt with the reasons an order for non-disclosure was sought. I think the Magistrate dealt with the issue of non-disclosure appropriately. He had to be advised of X1’s identity and he had to be satisfied that the witness statements were authentic. It was not inappropriate for him to receive X1’s affidavit and he made it clear in his reasons that he would make no findings based on the contents of the sealed envelope. I take him to mean by that no findings adverse to the plaintiff. In my opinion, once it is accepted that the doctrine of public interest immunity was available to justify the non-disclosure of X1’s identity, the course adopted by the Magistrate was inevitable and no case of apprehended basis on the part of the Magistrate is made out.
I reject the challenge to the Magistrate’s decision declining to disqualify himself.
Conclusion
For these reasons, I would dismiss the application for judicial review.
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