Meissner v The Queen

[1995] HCATrans 229

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S195 of 1994

B e t w e e n -

JOSEPH MEISSNER

Applicant

and

THE QUEEN

First Respondent

THE NEW SOUTH WALES CRIME COMMISSION

Second Respondent

Application for special leave to appeal

DAWSON J
TOOHEY J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 18 AUGUST 1995, AT 10.12 AM

Copyright in the High Court of Australia

MR G.R. JAMES, QC:   May it please the Court, in that matter I appear for the applicant with my learned friend, MR S.J. ODGERS.  (instructed by MacMahon Drake Balding)

MR R.N. HOWIE, QC:   I appear with my learned friend, MR G.J. BARTLEY, for both respondents.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales) and I.V. Knight, Crown Solicitor for the State of New South Wales)

DAWSON J:   Yes, Mr James.

MR JAMES:   Your Honours have had the benefit of the outline of argument and the summary of argument.  Your Honours, in Cain v Glass [No 2], which appears on our list of authorities, Mr Justice McHugh, at page 254 of that report, which can be found at (1985) 3 NSWLR 230, looking at the question in the context of committal proceedings, said, commencing on page 253, last line:

Except in the limited cases to which I have referred, the anonymity of the informants is entitled to be protected whether or not they are likely to be in danger.  It is precisely because informants may often be in danger that the public interest requires that their anonymity should be protected.  It is not for individual judges or magistrates to weigh up the competing public interests.  The law has already done so.  The public interest always requires the protection of the informant unless disclosure will assist in the protection of the liberty of the subject in criminal proceedings.

In that case, your Honour Mr Justice McHugh was of the view that a stay would not run in the event that the identity of informants was not to be disclosed because the very weighing process took place on the question of whether the identity should be disclosed and, if it should not, then a fair trial could occur.  Mr Justice Priestley, in that same case, did not share that view and expressed the view at page 245 of the report, the last paragraph of his judgment:

The other reason is that as Barton v The Queen (1980) 147 CLR 75 shows, if the appellants are committed for trial, there would be power in the trial court, if it is persuaded before the trial on a balancing of the various public interests involved that it would not be fair for the trial to proceed until certain evidence had been made available to the appellants, to stay the proceedings until that had been done. Undoubtedly that would be a rare step to take, but to follow that course would, it seems to me, be less unusual than for this Court to do what it is being asked to do.

Mr Justice Kirby generally agreed with the analysis of your Honour Mr Justice McHugh, though the crucial point which is applicable in this matter did not really arise in Cain v Glass, and that is:  what must the accused show in order to be able to obtain the information as to what crucial material witnesses may say?  Might I take your Honours to the appeal book ‑ ‑ ‑

DAWSON J:   It is clear enough that the Court of Criminal Appeal took the view that the evidence which you say you were deprived of would not have materially assisted you.

MR JAMES:   Yes, your Honour, and they took that view because no one had any access to it, but these were persons who had been paid $30,000 as informers and to assist, and that assistance took the form of participating in this very conversation.  Now, what we want is the words of the conversation.  There were only two matters linking this man to the activities of Camilleri in the minor drug transaction and the major drug transaction.  Those two matters were said to be the terms of the conversation and what was alleged to have been observed of him in a subsequent act.

DAWSON J:   Well, I know you say that, but the Court of Criminal Appeal decided that the deprivation, if that is the right word, of this evidence did not mean that you did not have a fair trial.

MR JAMES:   Your Honour, they had no satisfactory basis in fact for reaching that conclusion, nor did the trial judge, because it was common ground ‑ ‑ ‑

TOOHEY J:   Where is the principle, Mr James, that we are invited to deal with here?  It seems to me that what we are being asked to do is to carry out the sort of review that the Court of Criminal Appeal did.

MR JAMES:   No, your Honour.  The principle that was enunciated by the trial judge and the Court of Criminal Appeal was that there is a positive burden on an accused to show that the evidence will at least assist his exculpation, if not assist exculpate him, before he can find out the content of that evidence, when the evidence would come from relevant and material witnesses access to whom is being denied to both the Crown and the defence by a State authority whose principal function is to supply evidence under section 6 of the State Crime Commission Act to the prosecution.

Now, the end product of that exercise is that if that authority decides that the trial process will be denied relevant and material evidence, then the trial must proceed on an entirely artificial exercise in terms of what evidence is or is not available.  Of course, if the evidence is forthcoming to the accused, it will be forthcoming to the Crown, and if it is so forthcoming and damns the accused, so be it, but the accused is entitled, in our submission, by some appropriate precaution, to have at least the opportunity of a trial which will fairly set out the relevant evidence.

In this case, almost every corroborative matter by coincide has disappeared or was never produced in terms of record of the movements of the accused; a record of the conversation obtained by recording; the parcel wrappings itself, all have gone, all have disappeared.  Now, it crucially comes back to that question of the two witnesses also being unavailable.  Your Honours, at page 60 of the appeal book, Mr Justice Grove reduces the situation starkly:

The appellant does not challenge the happening of the encounter but it is asserted that he will deny participating in any conversation with Helen or George at all and emphatically will deny agreeing to supply Helen with any heroin.

Thus the situation reduces itself to simply this:  there are four people present at a conversation; one of them (Helen) may be expected to testify that the appellant uttered incriminating words; he proposes to contradict her and does not know whether George or Gail, if available, would support Helen’s version or assist him in his contradiction.

The considerations to be counterpoised -

and there his Honour refers to Alister -

are the public interest in the flow of intelligence from and the protection of informants by cloaking their identities on one side as against mere speculation as to what George or Gail might say if they were revealed and compelled on the other.

Now, your Honours, it is not mere speculation that, on the Crown case, they would have to say, in effect, what Detective Phillipson says the conversation was, and on the defence case, they would have to say what Meissner says it was.  What has happened is that Meissner and the trial process have been deprived of the larger portion of the evidence that could be given of that conversation.  Now, for a trial to proceed in that fashion, in our submission, notwithstanding what your Honour Mr Justice Dawson has said about the trial process not necessarily being a process designed to elicit the truth  ‑ ‑ ‑

DAWSON J:   Did I say that?

MR JAMES:   Yes, I think your Honour did say in Whitehorn and Apostilides ‑ ‑ ‑

DAWSON J:   Not this morning though.

MR JAMES:   No, not this morning, no, certainly not, would be to reduce or to divorce that process so far from reality as to compel this man to go to trial on an unnatural footing.  That is the gravamen of the application.  If the test is that the accused should not be entitled to access to persons who are not merely informers but participants in the very events and relevant and ‑ ‑ ‑

TOOHEY J:   What do you mean by access to persons?  The case itself turns on a subpoena, but presumably that is just an initial step towards the possibility of evidence being adduced from these persons?

MR JAMES:   Your Honour, what was sought by the subpoena was access to any material which would reveal their identity and whereabouts and permit a conference to be had with them.  No question has been taken to suggest that, in this case, any argument as to that being improper discovery should run.  What has been put is:  “Well, you don’t know what they’re going to say.  So, therefore, you do not have a legitimate forensic purpose, notwithstanding what’s said in Waind v Hill [No 2], and they’re our informers.  It’s more likely they’ll say something that’ll help us and, therefore, you, the defence, are not in a position to shoulder the positive burden”.  Express it how you like in the various formulations most recently looked at in Turner in the Court of Appeal (1995) 2 Cr App R by the Lord Chief Justice, Mr Justice May and Mr Justice Sachs.

There are proper formulations, but it is put that, “You are in no position to shoulder the positive burden to show that the evidence will help you, assist you, get you off, establish your innocence on the cards”, however one looks at it.

TOOHEY J:   No, but the point I was making or asking you about was that the access to the documents is a preliminary step to access to the informants, and that is really what is being sought, not just access to certain material which, I suppose, could be produced in some anonymous way, but access to persons whose identity must necessarily be revealed.

MR JAMES:   No, your Honour.  Access to material which would give the defence the opportunity to ascertain what the informers might say.  It is the first step.  If we are cut off at the threshold, no question can ever arise all the way along it, and we reach a paradox which is that, of course, we cannot say what they are going to say until we can find out, or have some access to them, or have access to documents which might tell us what they are going to say.

TOOHEY J:   Because the Crown is in the same situation.

MR JAMES:   Of course, and the agency of the State has denied to its prosecuting authority the access to that material and has denied access to the defence as well and, of course, my friend - and I can hand your Honours, should it be necessary, a copy of the State drug crime commission provision, where by section 6(1)(b), they have the function to assemble evidence and to furnish it to the Director, and by 6(2), they have a duty to furnish it to the Director yet, as against that is prayed in aid the incidental power under the Act to do all things incidental and a secrecy provision under section 29.  Would it be of assistance if I handed this to your Honour?

DAWSON J:   Yes.

MR JAMES:   Your Honours, this Court has looked at public interest immunity in Alister.  This Court has looked at legal professional privilege in Carter 129 ALR 593, and in that judgment, which is not on our list of authorities due to the fact that it has recently come down from the Court - and I can hand copies to your Honours - there are various passing comments by members of the Court, including Mr Justice Deane at page 604, dealing with the question of whether legal professional privilege should give way, particularly in a criminal case, where his Honour says at about line 12:

A possible answer as regards suggested unfairness to the accused on a criminal trial may be that, in the hands of the skilled advocate, the refusal of access to the privileged communication or document is likely to be a more potent weapon than would be the communication or document itself and that, if there ever were a case where it became apparent that refusal of access precluded a fair trial, it would be possible to invoke the inherent power of the courts to stay proceedings.

Similarly, in the judgment of your Honour Mr Justice Toohey at page 617, line 37, your Honour reviews Cain v Glass and the position in criminal proceedings, in particular in the context of the so-called informer privilege.  Again, your Honour refers to it at page 618 at line 36:

Where an accused facing trial satisfies the court that the production of documents subpoenaed by the accused is necessary for the proper conduct of his or her defence, then, subject to any proper objection that may be taken, other than on the ground of legal professional privilege, the court may order the production of those documents.

And your Honour goes on to point out that it leaves questions unanswered and that there may be a real question of the curial process being frustrated by fishing expeditions, and that it was not necessary to express the principle more widely than in the individual case.

TOOHEY J:   Yes, well, unhappily, Mr James, I was in dissent on that matter also.

MR JAMES:   Certainly, but for the purposes of this application, what I am seeking to do is that this Court has passed to consider - was considered in passing this question in Carter for the examination of the proposition of whether legal professional privilege is conclusive, and there are the remarks of various members of this Court, including your Honour and Justice Gaudron at 620 in a very short judgment, and your Honour Mr Justice McHugh at 624, lines 30 to 40, and at page 627, dealing with the production to the Crown and the defence on a mutuality basis, and in the paragraph concluding at line 15, and I do that for the purpose of raising this as an appropriate vehicle for the grant of special leave.

The factual proposition is stark.  The law has been variously expressed in the United Kingdom and in the States of Australia.  It is a matter that has not been disposed of or examined by this Court.  It does touch on that question of public interest immunity and privilege in which, in both matters, the court has indicated that it is a question that may need to be resolved.  It is a situation in which justice is sought to be done to both the Crown and the defence.

There is, with the greatest respect, no direction that could be given at trial that would assist the accused in the absence of relevant and material evidence showing that Constable Phillipson’s recollection of the conversation is incorrect, and it comes down to the position that the proposition in Alister, whether it is on the cards, is a proposition that no accused could ever comply with if he had first no access to the material, so

that he is able to say that the material can assist.  There can be no question here of a fishing expedition, because it is quite clear that these persons must be relevant and material witnesses.

McHUGH J:   But you would get the benefit of a Jones v Dunkel direction, would you not?

MR JAMES:   Which is to say that they would not assist the Crown ‑ ‑ ‑

McHUGH J:   The Crown case.

MR JAMES:   Well, no, your Honour, we would not, one, because the reason why the Crown cannot produce them is perfectly explained.  The State Crime Commission said “No”.  Secondly, that direction is of no such assistance to an accused where positive evidence of the conversation is being brought out.  We cannot say, “But these two witnesses would have contradicted Phillipson”, and that’s exactly what we’re after from the evidence, not mere inconsistencies; not an opportunity for cross‑examination, but positive evidence, either in the defence case or the prosecution case to show that that account was false.

DAWSON J:   No doubt you can put that to the jury too.

MR JAMES:   But we cannot, your Honour.  Without any foundation, we cannot put that.

DAWSON J:   You can put what you have just put, that you were denied the opportunity to find out.

MR JAMES:   Yes, and that would inevitably lead to the possibility that it might be said, “You’re denied the opportunity because these persons’ lives would have been in danger if they’d been produced to the defence”.  Much good that would do us at a trial.  Such a question is peculiarly apt, as Mr Justice Priestley pointed out, for determination in this way, as a proposition of law prior to the trial.  Your Honours, there is little more than I can put but, in our submission, the case raises the very great principle that an investigating agency, whose duty it is to provide the evidence to the Crown, may take the view that rather than provide the evidence, it will shield the evidence from provision to both the Crown and the defence and thus compel a criminal trial to go ahead on its terms if that trial is not stayed, or if the Director of Public Prosecutions declines to enter a no bill.

DAWSON J:   Thank you, Mr James.  We need not trouble you, Mr Howie.

The judgment of the Court of Criminal Appeal in this case contains no more than the application of established principle to the facts of the case and does not involve any question which would warrant the grant of special leave.  Special leave shall be refused and is refused accordingly.

AT 10.34 AM THE MATTER WAS CONCLUDED