Marsden v Amalgamated Television Services Pty Limited

[1999] NSWSC 213

CITATION:

Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 213

CURRENT JURISDICTION:

Common Law

FILE NUMBER(S):

20223 of 1995; 20592 of 1996

HEARING DATE(S):

4 March 1999; 9 March 1999; 12 March 1999

JUDGMENT DATE:

19 March 1999

PARTIES :

JOHN MARSDEN
(Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED
(Defendant)

NSW POLICE SERVICE
(Under Subpoena)

JUDGMENT OF:

Levine J

COUNSEL :

R G McHugh
(Plaintiff)

J S Wheelhouse
(Defendant)

P Singleton
(Crown Solicitors Office)
(NSW Police Service)

SOLICITORS:

Phillips Fox
(Plaintiff)

Mallesons Stephen Jacques
(Defendant)

CATCHWORDS:

Public interest immunity by New South Wales Police Service in respect of subpoena issued by defendant

DECISION:

See paragraph 12

DLJT: 25

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

No. 20223 of 1995
No. 20592 of 1996

JUSTICE DAVID LEVINE

FRIDAY 19 MARCH 1999

JOHN MARSDEN
(Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED
ACN 000 145 246
(Defendant)

NEW SOUTH WALES POLICE SERVICE
(Under Subpoena)

JUDGMENT (Preliminary ruling in relation to claim for public interest immunity by New South Wales Police Service in respect of subpoena issued by defendant)
1 On 26 February 1999 the defendant served a subpoena on the New South Wales Police Service for the production of the following: “All records (that is, reports, documents, memoranda, records of interview, transcripts of interview, file notes, computer print-outs, audio tapes and video tapes) of the meeting which took place on or about 29 January 1999 between the New South Wales Police Service and john Robert Marsden and/or his legal advisers”.
2 In support of the claim an affidavit of Lola Ann Scott sworn 3 March 1999 was read by the applicant, the Commissioner of Police (under subpoena). Ms Scott is the Assistant Deputy Commissioner of Police, she annexes the defendant’s subpoena and deposes to having exhibited to her and placed in a confidential envelope exhibit LAS 1 constituted by four audio tapes recording an interview between Detective Superintendent Michael Woodhouse of the New South Wales Police Service and John Marsden on 29 January 1999 and a transcript of those four tapes. She claims public interest immunity against production of that material. She was informed by Detective Woodhouse and believed that the plaintiff participated in the interview with him on the basis that the record of that interview would be kept confidential.
3 Ms Scott goes on to say “it is in the public interest for people who are being investigated by Police to cooperate with Police and to be interviewed so that the allegations may be put to them for a response. If those under investigation are also party to civil proceedings and are aware that any material evidencing any interview in which they may participate will be subject to production under subpoena, they may decline to participate in such interviews. This would hamper the proper conduct of investigations prosecution of offences by Police and other law enforcement agencies and thus be contrary to the public interest. Further, it is contrary to the public interest to disclose information in respect of which Police have made an undertaking of confidentiality. It would undermine many different aspects of their works if Police could not maintain those undertakings if the material to which they relate was liable to production on subpoena”.
4 The claim for public interest immunity is advanced as a “class” claim: The Commonwealth v Northern Land Council (1992-1993) 176 CLR 604 at 616.
5 It is a class of claim for public interest immunity founded upon “effective policing” which is recognised generally as a basis for such a claim for immunity: see D v NSPCC (1978) AC 171 at 232F, per Lord Simon of Glaisdale; this is not restricted to the mere fact of the confidentiality referred to in the affidavit. Confidentiality alone is not sufficient to found such a claim: Alfred Crompton Amusement Machines Limited v Customs & Excise Commissioners (No. 2) (1974) AC 405 at 433-434; D v NPSCC at 218A per Diplock LJ.
6 The claim, in effect, is that effective policing requires the Court to uphold Police undertakings of confidentiality in the circumstances referred to in the evidence. As a matter of recognised policy Police undertakings must be kept if effective policing is to be maintained. It is conceded by Mr Singleton that there is no authority precisely on point but the general propositions adverted to in such cases as D v NSPCC make it clear that the categories of public interest immunity are not closed and this is conceded by the defendant.
7 In D v NSPCC Lord Diplock at 218B said:
“The private promise of confidentiality must yield to the general public interest that in the administration of justice truth will out, unless by reason of the character of the information or the relationship of the recipient of the information to the informant a more important public interest is served by protecting the information or the identity of the informant from disclosure in a Court of law”.
8 Mr Singleton did not advance the claim as one that normally applies to an informant as is generally understood in the criminal law, but rather in respect of a person who gives information to the police in circumstances of continuing investigation and the requirement that the information be protected. The identity of the informant is not in issue, he is Mr Marsden.
9 The procedure was adopted to determine whether or not a claim is available as articulated in the evidence. Mr Wheelhouse for the defendant objected to this course, seeing it as one that precludes the balancing exercise that may be required, or if it applies, precluding the operation of s 30 of the Evidence Act. I accepted the submissions of Mr Singleton for the Police that that exercise would be embarked upon after the question as to whether the claim for immunity falls within a recognised and principled class of claim and if it does, then consideration would be given to any balancing matters that would or could bring it about that notwithstanding the successful claim for immunity, an order for disclosure or production should be made.
10 I am conscious of and acknowledge the correctness of the proposition contained in the statement of Mahoney JA in Goldberg & Anor v Ng (1994) 33 NSWLR 639:
“In my opinion, a claim to public interest immunity is one which should be upheld only for reason which, after careful scrutiny, are judged to be compelling. What is in question where a claim for public interest immunity is raised is the role of the courts in a modern democratic society. In any society, disputes arise: they may arise between individuals or may involve the State. It is necessary that there be a recognised and publicly accepted method of resolving such disputes. If disputes are not to be determined by judicial procedure, they will be determined not according to what is just but for reason of power, influence or the like”.
11 I am not persuaded by any suggestion that a ruling in favour of the class of claim made for the Police Service would have some form of “floodgates” effect in protecting every Record of Interview the Police take in the course of any investigation. Effective policing requires that Police undertakings be kept to permit the flow of cooperation from people including suspected people in the discrete environment of a Police investigation but one concurrent with a civil action.
12 I am of the view that the applicant has established clearly a claim for public interest immunity in the sense of a class of claim on the basis of the material in Ms Scott’s affidavit and rule accordingly.
13 The course to be taken hereafter by the defendant will be a matter for it.

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