Ibrahim v Commissioner of Police - [2008] NSWCCA 197

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
IBRAHIM v COMMISSIONER OF POLICE & Anor [2008] NSWCCA 197

FILE NUMBER(S):
2007/ 8612

HEARING DATE(S):
2 July 2008

JUDGMENT DATE:
21 August 2008

PARTIES:
Hussan IBRAHIM
COMMISSIONER OF POLICE & Anor

JUDGMENT OF:
Allsop P James J Price J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
07/31/0217

LOWER COURT JUDICIAL OFFICER:
Finnane DCJ

LOWER COURT DATE OF DECISION:
23 April 2008

COUNSEL:
Applicant: A W Street SC/ W Edwards
1st Respondent: R Grady
2nd Respondent: Submitting appearance

SOLICITORS:
Applicant: Galloways
1st Respondent: R Davies - Crown Solicitors
2nd Respondent:Director of Public Prosecutions

CATCHWORDS:
CRIMINAL LAW – Procedure – Subpoena – Public interest immunity privilege.

LEGISLATION CITED:

CATEGORY:
Principal judgment

CASES CITED:
Alister v The Queen (1984) 154 CLR 404
Attorney-General for New South Wales v Chidgey [2008] NSWCCA 65
Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49
R v Saleam [1999] NSWCCA 86

TEXTS CITED:

DECISION:
1. Grant leave to appeal from the order of the District Court made on 23 April 2008 setting aside paragraphs 1, 2, 3, 4, 5, 6 and 7 of a further amended schedule to a subpoena issued on behalf of Hassan Ibrahim to the Commissioner of Police, the form of such schedule being attached to a letter dated 22 April 2008 from Galloways, Solicitors and Attorneys to the Crown Solicitor’s Office.
2. Dismiss the appeal.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 2007/8612
ALLSOP P
JAMES J
PRICE J
Thursday 21 August 2008

Hussan IBRAHIM v COMMISSIONER OF POLICE & Anor

Judgment

ALLSOP P: This is an application for leave to appeal from an interlocutory order made on 23 April 2008 by a District Court Judge (Finnane DCJ) upholding a claim of public interest immunity in relation to the documents called for in paragraphs 1-7 of an amended schedule to a subpoena issued on behalf of the accused (the applicant for leave to appeal) and setting aside the subpoena in relation to those paragraphs. The amended schedule was annexed to a letter dated 22 April 2008 from the accused’s solicitor to the Crown Solicitor’s Office.
The accused, the applicant for leave to appeal, is in custody on remand awaiting trial in relation to charges connected with the shooting of a number of persons on 12 September 2004. The shooting was said to involve the affairs of a motor cycle gang known as “The Nomads”.
At his committal hearing, a policeman, Senior Constable Wild, gave evidence and was cross-examined. It was put to Senior Constable Wild that he said to a Mr Campton, one of the victims of the shooting, while the latter was in hospital by reason of his wounds:
Wild: Do you know who had done this?
Victim: No
Wild: Do you want to know who did it?
Victim: No.
The solicitor for the applicant gave evidence in an affidavit sworn for the application to this Court that he was present at the committal and that he took from Senior Constable Wild’s evidence at the committal that shortly after the shooting the police obtained information as to what had taken place inside the premises in question and who was responsible for the shooting. The solicitor expressed his conclusion that the information was or must have been derived from some form of electronic surveillance on a person who observed the events or was informed of them shortly after they occurred. He stated that the police have a record of this information. The affidavit set out a number of matters by way of submission as to the application.
Open affidavits of Sgt David Driscoll, the officer in charge of the investigation, were before the primary judge and this Court. The first affidavit was directed to oppression and the absence of apparent forensic purpose. The second foreshadowed public interest immunity claims.
An open affidavit of Acting Deputy Commissioner Peter Dein was before the primary judge and this Court. A claim for public interest immunity privilege was made in a confidential affidavit of Acting Deputy Commissioner Dein that was given to the primary judge. It was provided to this Court.
The Commissioner of Police also relied in this Court on an open affidavit of Assistant Commissioner Paul Carey. He set out the history of the matter and provided two confidential exhibits: Confidential Exhibit PC 1 and Confidential Exhibit PC 2. Confidential Exhibit PC 1 contained the documents caught by paragraphs 1 to 7 of the amended schedule to the subpoena. Confidential Exhibit PC 2 was another affidavit of Assistant Commissioner Carey which was confidential. The Court examined (without opposition) the information referred to above that claimed to be confidential. Plainly it bears that character.
Before the primary judge debate first took place on the subject of the legitimate forensic purpose of the subpoena. The solicitor for the accused relied on the matters stated at the committal and in particular the aspects of that which he said revealed that the documents sought would reveal information germane to the identity of the person who shot Mr Campton. He relied on the cross-examination of Senior Constable Wild and what Mr Campton said Senior Constable Wild said to him (Mr Campton) in hospital.
The solicitor stated that the legitimate forensic purpose was ascertaining what information was given to the police on the day of the shooting because it was said to contain evidence of an eyewitness (not the victim and proposed witness in the trial, Mr Campton). It was submitted that the statement made by Senior Constable Wild at the hospital revealed that there was another witness. The solicitor did not seek the identity of that witness but the documents to reveal what he or she saw and told the police.
Mr Grady, who appeared for the Commissioner of Police before the primary judge and before this Court submitted to the primary judge that there was no legitimate forensic purpose demonstrated and he relied on the confidential affidavit, for the whole of his application.
The primary judge then looked at the confidential affidavit.
It should be noted that the issue of forensic purpose (or lack thereof) was a ground of setting the subpoena aside, as well as a relevant consideration bound up with the claim for public interest immunity privilege.
After the primary judge read the confidential affidavit he said the following:
In my opinion there may be a legitimate forensic purpose in getting access to the material but I uphold the claim of public interest immunity …
His Honour then set aside paragraphs 1 – 7 of the relevant schedule to the subpoena.
After some further discussion, the following exchange between the primary judge and the solicitor for the accused took place:
GALLOWAY:  That’s fine. Your Honour indicated to my friend in reply to the production of the records and we know from that transcript they do exist by the way, I gather from your Honours decision – I’m just clarifying a couple of matters – that you don’t require to see the material in possession ---
HIS HONOUR:     Having regard to the affidavit, I do not require to see the actual material.
GALLOWAY:  I think it’s important to note for the record, your Honour having decided on – I mean no disrespect in saying this to you, on deciding the public interest claim I note the respondent hasn’t been heard in relation to that aspect of the matter.
HIS HONOUR:     That’s right. I have looked at it, I have decided. Now I cannot, by making this decision, prevent you issuing another subpoena and arguing it again before the trial judge subject of course to the right of the trial judge to reject it as vexatious or something. But it is a purely interlocutory order.
GALLOWAY:  I understand, your Honour, and for the purpose of --
HIS HONOUR:     And I might say the trial judge might, having regard to what occurs at the trial, might want to revisit it, I don’t know. I’m not suggesting he would.
There were nine grounds of complaint in this Court in the amended application as to the conduct of the application by the judge, as follows:
(1)that the trial judge erred in law by declining to afford the accused procedural fairness in respect to the right to be heard on the issue of public interest immunity;
(2)that the trial judge erred in law by reason of the denial of procedural fairness for want of adequate reasons;
(3)that the trial judge erred by failing to take into account the evidentiary inadequacy of the open affidavit in support of the alleged privilege;
(4)that the trial judge erred in law by failing to take into account the serious departure from proper investigative procedure in respect of an alleged victim in relation to the content of the alleged confidential information the subject of claimed public interest immunity;
(5)that the trial judge in determining the application as to public interest immunity erred in law by failing to take into account to the legitimate forensic purpose in respect of which production was sought;
(6)that the trial judge erred by failing to take into account the importance of the information as to the innocence of the accused and the flawed veracity and credibility of the Crown case as to who shot and wounded Dale Campton being one of the alleged physical elements in the indictment against the accused under s33 of the Crimes Act 1900;
(7)that the trial judge failed to take into account the matters identified in s130(5) of the Evidence Act 1995 in determining whether production should be required;
(8)that the trial judge erred by failing to hold that the accused had established on the cards that the documents would materially assist the accused’s case in establishing his innocence;
(9)that the trial judge erred by failing to inspect each of the actual documents to determine whether the content as to the identity of the shooter of Dale Campton would materially assist the accused’s case in establishing his innocence.
Ground 7 can be dismissed immediately. The application was covered by the common law, not the Evidence Act 1995: Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49.
Ground 1 is, however, made out. The primary judge, in effect, refused to hear the solicitor for the accused on the question of public interest immunity. It may have been that the judge took the view that since the accused and his solicitor were not entitled to see the confidential material seeking to substantiate the immunity that meant that he did not have to provide the solicitor for the accused with an opportunity to put submissions to him. That would not follow at all. The primary judge should have given Mr Galloway (the solicitor for the accused) an opportunity to address the issues in the light of the open evidence. This was an error in his Honour’s approach. Parties should be entitled to address a court on an issue such as this. It may be that it can be said that a denial of a right to address made no difference. I would prefer to recognise the error in his Honour’s approach and approach the matter afresh by recognising the error as the basis for granting leave to appeal. In these circumstances, it is unnecessary to deal with the other complaints about the approach of the primary judge.
Mr Street SC, who appeared with Mr Edwards, on behalf of the applicant put detailed submissions about how the documents the subject of the subpoena must go to the question of identification. He stressed the seriousness of the charges; he asserted the impropriety of what Senior Constable Wild was said to have done; he stressed the asserted legitimate purpose of production of the documents. He said that the surrounding material of Mr Campton’s evidence, the recent withdrawal of some of Mr Campton’s evidence and the discussion said to have taken place at the hospital all made it plain that it was “on the cards” that the documents the subject of the paragraphs in the subpoena would materially assist the defence: see Alister v The Queen (1984) 154 CLR 404 at 414; Attorney-General for New South Wales v Chidgey [2008] NSWCCA 65; R v Saleam [1999] NSWCCA 86[11].
No objection was taken to this Court inspecting not only the confidential affidavit before the primary judge but also the Confidential Exhibits PC 1 and PC 2. A reading of that material permits me to say that I am not persuaded that the documents would assist the defence in any way. I am clearly of the view that it was not “on the cards” that this would be so. This being the case, there is no basis to order a stay should access be refused to the documents covered by the relevant paragraphs of the amended schedule to the subpoena (as in my view, it should be). No legal principle requires this Court to conclude that the material (being the affidavit material and the documents themselves) cannot be looked at to assess this issue, as appeared to be put on behalf of the applicant
The documents are clearly entitled to the protection of public interest immunity privilege. To elaborate reasons for that conclusion would tend to destroy the privilege. So, I do not propose to do so.
It was submitted that the respondent had waived parts of the confidential affidavit by a submission that those parts assisted in the conclusion that no forensic purpose existed. I reject that submission. The whole of the confidential material can be examined to assess the public interest in the material in question remaining confidential and immune from access. By its nature and content, it also tends to undermine the assertions made on behalf of the applicant based on the surrounding circumstances to which attention was drawn. To say more than this would undermine the confidentiality of the material. It is sufficient to repeat, at this point, the conclusion that I am not persuaded that the documents sought would assist the defence in any way.
Although I am of the view that the primary judge erred in not hearing the applicant’s solicitor on the application, I would not interfere with his order. Therefore, I would grant leave to appeal, but dismiss the appeal.
Thus the orders that I would make are as follows:
1.Grant leave to appeal from the order of the District Court made on 23 April 2008 setting aside paragraphs 1, 2, 3, 4, 5, 6 and 7 of a further amended schedule to a subpoena issued on behalf of Hassan Ibrahim to the Commissioner of Police, the form of such schedule being attached to a letter dated 22 April 2008 from Galloways, Solicitors and Attorneys to the Crown Solicitor’s Office.
2.Dismiss the appeal.
Each of the members of the Court has in his possession confidential material. The representative of the respondent should make arrangements with the Registrar of the Court of Criminal Appeal for the safe retrieval of this material.
JAMES J: I agree with Allsop P.
PRICE J: I agree with Allsop P.

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LAST UPDATED:
10 September 2008