Nabil Bazzi v The State of Western Australia - [2024] WADC 36

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION:   PERTH
CITATION:   NABIL BAZZI -v- THE STATE OF WESTERN AUSTRALIA [2024] WADC 36
CORAM:   WAGER CJDC
HEARD:   21 DECEMBER 2023 & 20 FEBRUARY 2024
DELIVERED          :   29 MAY 2024
FILE NO/S:   IND 1403 of 2020
BETWEEN:   NABIL BAZZI

AND
THE STATE OF WESTERN AUSTRALIA
AND
ATTORNEY GENERAL FOR WESTERN AUSTRALIA
Intervener

Catchwords:

Application to be informed as to any orders made by the court - Section 138(5) Criminal Procedure Act 2004 (WA) - Disclosure requirement - Dispensing with disclosure requirements - Principles of statutory construction - Meaning of the words 'given' and 'disclose' in s 138(5) - The Kable principle in the context of State legislation

Legislation:

Acts Amendment (Justice) Act 2008 (WA)
Criminal Appeals Act 2004 (WA)
Criminal Procedure Act 2004 (WA), s 137A, s 138
Judiciary Act 1904 (WA), s 76B

Result:

Application dismissed

Representation:

Counsel:

Applicant	:	Mr F P Meranda & Mr S R Park
Respondent	:	Mr R G Wilson
Intervener	:	Mr J B Berson

Solicitors:

Applicant	:	Holborn Lenhoff Massey
Respondent	:	Director of Public Prosecutions
Intervener	:	State Solicitor's Office

Case(s) referred to in decision(s):

Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38
Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651
Graham v Minister for Immigration and Border Protection
Te Puia v Minister for Immigration and Border Protection (2017) 263 CLR 1
Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2007] WASCA 49
Gypsy Jokers Motorcycle Club Inc v The Commissioner of Police (2008) 234 CLR 532
Kable v The Director of Public Prosecutions for the State of New South Wales (1996) 189 CLR 51
K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531
Mallard v The Queen [2003] WASCA 296; (2003) 28 WAR 1
New South Wales v Shepherd [2019] NSWCA 261
Programmed Industrial Maintenance Pty Ltd v Construction Industry Long Service Leave Payments Board [2021] WASCA 208
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; (1998) 153 ALR 490
Question of Law Reserved (No 1 of 2018) [2018] SASCFC 128; (2018) 275 A Crim R 400
Re Her Honour EA Woods; Ex parte Hardie Finance Corporation Ltd [2008] WASC 282
Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; (2010) 267 ALR 204
The Commonwealth v Baume (1905) 2 CLR 405
Webb v Tang [2023] WASCA 119

WAGER CJDC:

The Applicant, Mr Bazzi applies pursuant to s 138 of the Criminal Procedure Act 2004 (WA) (CPA) for the following orders:
1.The Applicant have permission to be given or disclosed a copy of any order made in the absence of the Applicant pursuant to s 138(3)(a).
2.The Applicant be informed as to whether any other orders were made by this court or the Magistrates Court of Western Australia in the absence of the Applicant.
3.The Applicant be provided with the transcript or recording of any hearing held in the Applicant's absence in this court pursuant to s 138 including the application made on 5 May 2021.
Opposing the application, the Respondent (The State of Western Australia (the State)) submits that on proper construction of s 138, the Applicant has 'no standing' to make such an application and, in the event the Applicant could bring an application, the application has no merit.
At initial hearing of the application in this court the Applicant submitted that an issue requiring interpretation pursuant to s 76B of the Judiciary Act 1903 (WA) had arisen given the State's opposition, notice of which was required to be given to the Attorneys General of States, Territories and the Commonwealth pursuant to s 78B, the issue raised in the notice being:
Whether s 138(5) of the Criminal Procedure Act 2004 (WA) is intended as conferring upon a State court a function or power which is incompatible with and repugnant to the integrated system of courts prescribed by Chapter III of the Commonwealth Constitution.
The order sought being that the Applicant being provided with any order previously made in the accused's absence pursuant to s 138(3) of the Criminal Procedure Act 2004 (WA).
The Intervener (The Attorney General for the State of Western Australia (the Attorney General)) filed an intention to intervene in respect of the question of law raised.
The issue of whether this court has the power to consider the Applicant's applications and whether the orders sought by the Applicant should be made was heard on 20 February 2024. The issue relating to Chapter III of the Commonwealth Constitution is considered only as it relates to the s 138 application.

The issue at trial

The Applicant proceeded to trial between 2 August 2022 and 22 August 2022 and was convicted by jury verdict of:
•Count 1 - being in possession of $114,950 in cash that was the proceeds of an offence, namely the sale of a prohibited drug contrary to s 563(1)(b) of the Criminal Code (WA).
•Count 2 - being in possession of a trafficable quantity of methylamphetamine with intent to sell or supply it to another contrary to s 6(1) of the Misuse of Drugs Act 1981 (WA).
•Count 3 - being in possession of $354,700 in cash that was the proceeds of an offence, namely the sale of a prohibited drug contrary to s 563(1)(b) of the Criminal Code (WA).
The Applicant was sentenced to serve an effective term of 21 years' immediate imprisonment.
The Applicant has filed an appeal against both his conviction and his sentence.

Background of the present application

On 5 December 2023 counsel for the Applicant requested, by informal email, permission to be provided with copies of any orders made in the Applicant's absence in relation to the prosecution's disclosure requirements pursuant to s 138 of the CPA. The State, by email, effectively responded that given the appeal process had been commenced, it was not appropriate for this court to hear the application. It was appropriate for the Court of Appeal to program any approach this court should take to the application rather than listing the matter immediately before this court.
The Applicant applied to the Court of Appeal in relation to the issue. On 20 December 2023 the Court of Appeal (Buss P, Mazza and Hall JJA) unanimously dismissed the application. Buss P said on behalf of the court:
The Court is satisfied that in the circumstances of the present case, the District Court and not the Court of Appeal has jurisdiction to grant the permission referred to in s 138(5) of the Criminal Procedure Act 2004 (WA). Any application by the appellant for that permission must be made to the District Court.
In its submission in respect of this hearing, the Applicant summarised the history of the matter and the issues that arose at trial. The State agrees with the contents of the summary, save for issues in relation to the witness, Mr Arash Mohammadzadeh (AM) and the inferences arising from the evidence he gave. The summary of the State's case (incorporating the State's position) is as follows:
(a)Police apprehended AM who was in possession of approximately 7 kg of methylamphetamine having collected the drugs earlier from the co-offender Mr Huynh in a car park in Queens Park Reserve.
(b)In relation to count 3, the Applicant was using a Cipher phone 'Straight Bourbon'. This was used to direct AM in relation to the collection of those drugs and movement after collection. The States case was that the Applicant was in either joint possession of the drugs with AM or alternatively he was liable as an aider pursuant to s 7(c) of the Criminal Code (WA). The jury were directed to find the Applicant guilty of count 3 only if they were satisfied beyond reasonable doubt that the Applicant was 'Straight Bourbon'.
(c)The sum of $354,700 was located in a search of AM's partner's apartment which is the subject of count 4. The State's case was that at least some of the cash found in the bedroom was possessed by the Applicant in circumstances where it was being held by AM under direction.
(d)Shortly after AM's apprehension by police he cooperated with them by providing access to his Cipher phone which included messages with the 'Straight Bourbon' Cipher account. Relevantly to count 3 and count 4, the messages included Exhibit 6 and Exhibit 7.[1]
[1] (a) Messages between AM, another Cipher account called 'Warz' and a Cipher account 'Straight Bourbon'.
(b) Messages from 'Straight Bourbon' relating to the collection of the cash on the day prior to the collection of the drugs underlying count 3 by AM.
(c) Messages from 'Straight Bourbon' pasting in messages from another person concerning the counting of cash.
(d) Messages from 'Straight Bourbon' enquiring whether AM could collect 'seven girls' which was code for 7 kg of methylamphetamine, and included messages from 'Straight Bourbon' indicting that if AM could not collect the drugs, then another person could do it.
(e) Messages relating to the coordination of the collection of the drugs by AM.
(f) Messages in the immediate lead up to the transaction including messages where 'Straight Bourbon' had directed AM to a different location other than the originally planned location for the collection of the drugs out of a concern by AM that a marked police vehicle was in the area where the collection of the drugs had been initially planned to occur.
AM gave evidence in accordance with an undertaking pursuant to s 76 of the Sentencing Act 1995 (WA).
AM gave evidence that he had been recruited by the Applicant at some point in 2021. He was provided with a Cipher phone by the Applicant for the purpose of communicating with him and with another person 'Warz' who the Applicant had told AM was the 'street director' for the enterprise.[2]
[2] ts 224.
AM gave evidence that at a meeting with the Applicant, the Applicant had preloaded a contact called 'Tiger Balm' into the Cipher phone contacts. The Applicant showed AM how to use the phone. AM commenced working as a courier a few days after the meeting which was coordinated with the 'Tiger Balm' account. In a chat group message with 'Tiger Balm' and 'Warz', AM described the process of collecting cash and drugs as dead drops[3] which he did until the point of his arrest on 28 November 2019.[4]
[3] ts 227 - ts 240.
[4] ts 219 - ts 223.
AM gave evidence that he had also met with the Applicant on three other occasions after having arranged to meet by Cipher in relation to the collection of cash.[5] The original Cipher name provided by the Applicant changed numerous times over the period that he worked with him however, at the time of arrest the username was 'Straight Bourbon'.[6]
[5] ts 241 - ts 247.
[6] ts 221 - ts 225; ts 268.
AM explained that he would also store cash collected on behalf of the Applicant and that he would get instructions to deliver the cash via Cipher phone when the amounts reached a threshold, usually $500,000 or $1 million. He described an occasion when he was instructed to leave $10,000 in a random post box in Victoria Park via Cipher. He did this on 13 November 2019.[7]
[7] Exhibits 21.1 - 21.2 closed court transcript of proceedings on 8 August 2022.
AM's credibility was subject to lengthy challenge by the Applicant and by Mr Huynh's counsel. The State accepted that AM had 'probably lied' about several matters in his evidence and that consequently the jury should only accept his evidence where it was corroborated by other evidence.[8] The State submitted to the jury that there were several matters that corroborated AM's evidence that the Applicant was 'Straight Bourbon'.[9] The State also relied on several other pieces of circumstantial evidence which were argued as being capable of leading to the conclusion that the Applicant was 'Straight Bourbon'.[10]
[8] ts 1016 - ts 1022.
[9] ts 1022 - ts 1034.
[10] ts 72 - ts 79.
The Applicant's case was that the evidence of AM was untruthful, and that the Applicant was falsely implicated to avoid identifying the true owner of the 'Straight Bourbon' account. The Applicant had been using the Cipher 'sales and support' consistent with him being the Cipher 'reseller, distributor and repairer in Western Australia', not 'Straight Bourbon'.[11]
[11] ts 1096.
The Applicant's counsel submitted that the conduct of the Applicant as described in AM's evidence was inconsistent with the ordinary way in which 'Straight Bourbon' appeared to conduct themselves. AM denied knowing a person referred to as 'R' but later admitted when shown messages that 'R' was a nickname that he and another used for the Applicant.
The Applicant's counsel submitted that the tracking device evidence in relation to the route taken at the time of drug collection was inconsistent with the alleged involvement of the Applicant. The Applicant urged the jury to reject the evidence of AM, given lies identified and the nature of AM's conduct.[12] The Applicant submitted the Western Australian Federal Police had an investigative bias identified by an inconsistency between the evidence of AM and the investigating officer in relation to AM taking part in a video record of interview (VROI) which was consistent with a failure to disclose material.[13] There were a number of delays in the trial while further disclosure and clarification was sought by counsel for the Applicant.[14] The trial judge made it clear that the prosecutor must remind police of their ongoing disclosure obligations and that the prosecutor would need to review all of the materials held by Western Australia Police.[15]
[12] Closing address, ts 1113.
[13] ts 776 - ts 779.
[14] ts 350 - ts 377.
[15] ts 350 - ts 351.
The State's case was that the evidence was consistent with AM being simply mistaken that he had taken part in a VROI in circumstances where he had participated in a recorded interview earlier and had also spoken to police in an interview at the police station. The State submitted AM had confused this process with participating in a VROI and there was no outstanding disclosure issue consistent with the Western Australian Federal Police having an investigative bias.
The State also submitted that any issue in relation to failure to disclose notes had been clarified and dealt with by the State on 4 August 2022, therefore all disclosure requests made during the course of the trial were dealt with.

Section 138 Criminal Procedure Act

Section 138 deals with orders dispensing with disclosure requirements:
138.Disclosure requirements, orders as to
(1)In this section, unless the contrary intention appears -
disclosure requirement means a requirement under section 35, 42, 61, 62, 95 or 96 to disclose material, other than a requirement under section 62(4)(a) or 96(3)(a).
(2)The powers in this section may be exercised by a court on its own initiative or on an application by a party to a case.
(3)A court may, in respect of a disclosure requirement, make an order -
(a)that dispenses with all or part of the requirement, if it is satisfied -
(i)there is a good reason to do so; and
(ii)no miscarriage of justice will result;
or
(b)that shortens or extends the time for obeying the requirement; or
(c)that amends or cancels an order made previously under this section, whether by the court or some other court; or
(d)as to any other matter that the court considers is just.
(4)An application for an order under this section may be made by a prosecutor without notice to the accused and may be dealt with in the absence of the accused.
(4a)Despite section 171, an application by a prosecutor for an order under this section that is made without notice to the accused must not be dealt with in open court and the only people who may be present when it is dealt with are the applicant and those permitted by the court.
(5)If an order is made under this section in the absence of an accused, the order must not be given or disclosed to the accused without the permission of the court that made it or, if it was made by a court of summary jurisdiction and the accused is committed for trial or sentence to a superior court, of the superior court.
In Western Australia the prosecution's obligation of disclosure is governed by both statute and common law.[16]
[16] Re Her Honour EA Woods;Ex parte Hardie Finance Corporation Ltd [2008] WASC 282.
The disclosure requirement set out in s 138(1) identifies the statutory obligations in the CPA which ultimately fall upon the State for material disclosure.
Additionally, at common law the prosecution has a general duty to disclose any material 'which can be seen on a sensible appraisal by the prosecution to be relevant or potentially relevant to the issue in the case'.[17]
[17] Mallard v The Queen [2003] WASCA 296; (2003) 28 WAR 1 [18].
Further, r 22 of the Criminal Procedure Rules 2004 (WA) (CPR) states:
22.Disclosure requirements, orders as to (CPA s 138)
(1)A prosecutor applying for an order under the CPA section 138 (the section 138 application) may also apply for an order that the section 138 application be heard in private and in the absence of the accused.
(2)If an application is made under subrule (1) -
(a)the prosecutor must not serve either that application or the section 138 application on the accused; and
(b)the court must hear the application made under subrule (1) in private in the absence of the accused.
(3)If the court grants the application made under subrule (1), it may proceed to hear and determine the section 138 application but otherwise the section 138 application will be adjourned and the prosecutor must serve it on the accused.
(4)An order made under the CPA section 138 in the absence of the accused must not be disclosed to the accused except with the leave of the court.

Principles of natural justice

In accordance with fundamental principles of fairness, an accused in a criminal trial is entitled to know the case that is brought against them. Those principles are not absolute and can be modified by statute, as they have been by s 138 of the CPA and its subsidiary legislation by way of r 22 of the CPR.
As noted by Martin CJ in Gypsy Jokers Motorcycle Club Inc v Commissioner of Police:[18]
Further, in each jurisdiction, it has been expressly recognised that the ordinary requirements of procedural fairness, including the ability of a party to know the case that he or she has to meet, must sometimes yield to a countervailing public interest in the protection of the confidentiality of evidentiary material, even as against a party to the proceedings.
[18] Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2007] WASCA 49 [57].
Martin CJ further elaborated on this principle in the following context:[19]
… in Australia, a legislative provision, apparently enacted in the protection of a legitimate public interest in maintaining the confidentiality of investigative information empowering a court to act upon that information, even though it not be disclosed to a party to the proceedings cannot, for that reason only necessarily be said to be unfair …
[19] Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [58].
To preserve the sensitive nature of s 138 proceedings, this court has implemented processes to ensure these proceedings are conducted in a secure manner. The conduct of secure court proceedings is outlined in the District Court Practice Directions Criminal (PDM) 10. A secure court order will ordinarily be made for non-disclosure hearings where leave is given for the application to be heard as per PDM 10.3.1. This practice is enacted by the court to recognise the sensitive nature of ex parte hearings which may be related to non‑disclosure hearings.

The requirement for a non-disclosure application to proceed without notice to an accused pursuant to s 138(4) of the CPA and r 22 of the CPR is outlined in PDM 2. PDM 2.4.3 requires that an application for a non-disclosure order will ordinarily be heard by a judge in closed court, without notice to any person the subject of the application. Consistent with s 138 of the CPA, PDM 2.4.11 stipulates that the order cannot be 'given' or 'disclosed' to the accused or their lawyer except with leave of the court.
Section 138(5) of the CPA is a prohibitive provision which is further reinforced by the provisions of the subsidiary legislation. If an application for an order pursuant to s 138 of the CPA is made, r 22(2) of the CPR places further obligations on the prosecution to ensure the application is not served on the accused, and an obligation on the court to ensure the matter is heard in private.

Section 138(5) Criminal Procedure Act

The State submits that s 138(5) of the CPA does not authorise the present applications. Firstly, because there is no cause for this court to change its decision and secondly, because the text of s 138(5), having regard to its context and purpose, does not authorise the application because it does not create a right of an accused to make an application pursuant to s 138(5) either before or after conviction.
The State also submits that the present application presupposes that a non‑disclosure order has been made in this matter. In the event that that is the case, such an order would only have been made after a judge was 'satisfied there is a good reason to do so; and no miscarriage of justice will result': s 138(3)(a) of the CPA.
Further, even if s 138 provides a mechanism for such disclosure, there is no merit in the Applicant's submission because no reason for disclosure has been identified.
The State raises that, on application of the principles of statutory construction, particularly the text of the provisions having regard to their context and purpose,[20] s 138(5) does not refer to an application by an accused or by a convicted person. Further, s 138(5) does not refer to any grounds upon which such an application is to be made and permission is to be given, nor to the procedural steps required of an accused who might make such an application. In contrast, other prohibitive legislation such as s 19C - s 19M of the Evidence Act 1906 (WA) specifically sets out the form and requirements of an application for leave.
[20] Webb v Tang [2023] WASCA 119 [72] - [75] (Buss P & Vaughan JA).
The State submits that s 138(5) prohibits the giving or disclosing of an order to an accused without the permission of the court because it is a prohibition provision and one which is directed at the court. Section 138(5) should not be considered as a facilitative provision authorising the making of an application by an accused.
The position of both the Applicant and the Attorney General is that s 138 of the CPA is a facilitative provision because there is no reason why s 138(5) should be read in isolation from the other subsections. When s 138(2) and s 138(5) are read together, it is clear that the accused may apply to the court for permission for an order to be given or disclosed to them even though r 22 of the CPR does not outline the procedural steps for such an application.
I agree with the Applicant and the Attorney General. The fact that s 138(5) sets out that if the order was made by a court of summary jurisdiction and the accused is committed for trial or sentence to a superior court, permission must be sought from the superior court rather than the court of summary jurisdiction before permission of the court for the order to be given or disclosed could be considered, makes it implicit that it must be possible for permission to be sought by a party, including the defence, after the making of an initial order. Section 138(5) does not restrict the defence from making an application and seeking permission to be given or disclosed any order made.

The Applicant's grounds for seeking permission

The Applicant acknowledges that the following considerations are relevant to whether the orders sought are made:
(a)whether the disclosure of the order itself would expressly or inadvertently divulge the information that underlines the making of the order; and
(b)if disclosure of the order would have the above effect:
(i)the time that has elapsed since the making of the order and whether the reasons for the making of the order still give rise to a good reason for the continuation of an order; and
(ii)bearing in mind the issues that have emerged in the case, or in the context and conduct of the trial that have resulted in the conviction of an accused, whether it can still be said that no miscarriage of justice will or has resulted from the making of the orders.[21]
[21] Applicant's submissions, pars 95 - 97.
The Applicant invites the court to consider the conduct of the Applicant's case and any connection that exists between the material withheld and:
(a)the co-offender AM who was a crucial witness to the State's case against the Applicant; and
(b)any evidence disclosing the existence of other persons within the drug syndicate in respect of which the Applicant was investigated and ultimately tried in these proceedings.
The State submits that the considerations raised by the Applicant are not relevant considerations because there is no cause for this court to change its decision regarding the merits of any orders it has made pursuant to s 138 of the CPA and to now give permission to the State to disclose any order to the Applicant under s 138(5). The court's obligations pursuant to s 138(3)(a) remain that a judge was, at the time of any application, satisfied in the event that the order was made, that there was a good reason to do so, and that no miscarriage will result in the event that an order was made. The State submits however the Applicant has not demonstrated why he has a legitimate forensic purpose to require the disclosure in the event that an order has been made and remains in place. The State submits that the s 138 order is final.
However, if the State's position that an order made under s 138 is final is correct, the court would be required, at the time the application is initially brought, to effectively make a final decision. If that decision was to deny an accused receipt of evidence that would otherwise be the subject of material disclosure without the court being able to re‑visit that decision in the event of ongoing investigation or of any potential defence at trial being brought to the court's attention, then the process would be fundamentally unfair. It would not only potentially result in the court being unable to ensure a fair trial, but would also place the court in a position where, even if circumstances changed so that an order potentially led to a miscarriage of justice, the court would be precluded from reconsidering the matter. This would preclude the court from revisiting the test required to be applied by s 138(3)(a)(i) and s 138(3)(a)(ii).
I am satisfied that this is not the intention of the legislation. The court has an obligation if circumstances change to ensure the order does not give rise to a miscarriage of justice. Accordingly, I reject the State's submission. Given the disclosure obligations at common law and by statute and the serious nature of making an ex parte order in a matter of this type, the prosecution carries a continuing obligation to bring any matters that may impact on the court's discretion in respect of s 138(3) to the court's attention. The court has an obligation to review any s 138 orders made in the event that the court is made aware of any new material or issues in the defence case that may impact on the s 138(3) determination earlier made.

Is the Applicant entitled to know whether orders have been made - the meaning of 'given or disclosed'

A party to a case is usually entitled as of right to receive copies of orders made by the court in their own proceedings. Section 138(5) of the CPA sets out that in the absence of the court's permission, there is a prohibition on any order made in the accused's absence being 'given or disclosed' to them. The meaning of the terms 'given' or 'disclosed' are disputed by the parties.
It is a general principle of statutory construction that all words in a provision prima facie be given some meaning or effect.[22]
[22] The Commonwealth v Baume (1905) 2 CLR 405, 414 (Griffith CJ) affirmed in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; (1998) 153 ALR 490 [71] (McHugh, Gummow, Kirby & Hayne JJ); Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; (2010) 267 ALR 204 [39]; Programmed Industrial Maintenance Pty Ltd v Construction Industry Long Service Leave Payments Board [2021] WASCA 208 [63].
The Applicant submits that the terms 'given' or 'disclosed' do not embrace merely informing the accused that an order exists because a person who tells the accused that an order was made by the court does not give or disclose the order itself and does not reveal the terms of the order or the material to which it relates.
The Applicant submits that throughout the CPA the term 'disclose' is used in the sense of providing material or a document to a party. The term does not refer to informing the other party that a document or material exists. By way of example, in s 138(1), the phrase 'disclose material' is used to refer to one party providing material to another party and in s 137(3)(b) the phrase 'whose evidence has been disclosed' is used, in respect of the evidence of a witness, to refer to the provision of the content of that evidence and not merely, to the act of revealing that the evidence exists.
The Attorney General and the State submit that if s 138(5) of the CPA was intended only to prevent disclosure of the content of an order rather than the fact of its existence the word 'given' would be sufficient to convey that meaning and the word 'disclosed' would serve no purpose. This is because the ordinary meaning of the word 'give' is, relevantly, 'to deliver freely; bestow; hand over', whereas the ordinary meaning of the word 'disclose' is 'to cause to appear; allow to be seen; make known; reveal'.[23] The word 'disclose' has a separate and distinct meaning from the word 'give'. The word 'disclose' is not superfluous. It refers to making the fact of any order known to the defence.
[23] Attorney General's submission, par 9 (Macquarie Dictionary (online as at 14 February 2024)).
The long title of the CPA is 'an Act to provide procedures for dealing with alleged offenders and for related matters'. The Act deals with a wide variety of issues that arise throughout the course of a prosecution in both summary and indictable matters. One of the issues it deals with is the requirement for disclosure of matters material by the prosecution to the defence. This disclosure requires more than disclosure of the fact that the material exists. If, however, that meaning of 'disclose' was adopted for 'given and disclose', the definition of 'disclose' would be identical to the definition of 'given'. This is inconsistent with both words being given their meaning and effect.

The statutory purpose of s 138 of the Criminal Procedure Act - The meaning of 'given' or 'disclosed'

The Applicant further submits that merely informing a party that an order exists could not derail the objects to which s 138 of the CPA is addressed, nor how the legislature intended to achieve those objects. Disclosure of the fact that an order had been made would enable the accused to take steps contemplated by s 138 to seek permission to receive the order or apply to amend or cancel the order or to seek a redacted copy of the reasons for decision for the purposes of confirming that the pre-conditions to the exercise of the powers vested in the court by s 138 have been observed thereby preserving an important aspect of procedural fairness.[24]
[24] Applicant's submissions, pars 33 - 41; New South Wales v Shepherd [2019] NSWCA 261 [31].
The Attorney General submits that disclosure of the mere fact that an order has been made to the defence would derail the statutory purpose served by s 138.[25] The Attorney General raises that although extrinsic materials from the time of the passage of the Acts Amendment (Justice) Bill 2007 (WA) that became the CPA do not assist in determining the purpose of s 138, the section was amended by the addition of s 138(4)(a) of Acts Amendment (Justice) Bill 2007 (WA) which became the ActsAmendment (Justice) Act 2008 (WA). The Explanatory Memorandum of the Acts Amendment (Justice) Bill sets out why the amendment (that became s 138(4)(a)) was added to the section. The Explanatory Memorandum states that:[26]
Applications are brought by Western Australia Police under s 138 of the Act for non-disclosure orders. These applications seeking an order not to disclose certain evidentiary material are a necessary precaution to safeguard 'at-risk' people and highly secure criminal investigations.
Hearing of applications in open court may result in vulnerable witnesses being placed in jeopardy, a reduction in confidence in witness protection programs and reduced effectiveness of covert criminal investigations.
[25] Attorney General's submission, pars 15 - 16.
[26] See Explanatory Memorandum, Acts Amendment (Justice) Bill 2007, page 13.
The Explanatory Memorandum for s 138(4)(a) makes it clear that the statutory purpose of s 138 is to address the need to protect 'at risk' persons and to protect highly secure covert criminal investigations. The purpose of an order under s 138 is to relieve the prosecution from its statutorily imposed duty of disclosure when the interests of justice require it. However, consistent with the obligation for disclosure both legislatively and at common law, orders made pursuant to s 138 require the court to be satisfied before any order is made, that there is a good reason to make the order and no miscarriage of justice will result.
Judicial discretion as to whether an order pursuant to s 138(3)(a)(i) and s 138(a)(ii) should be made or remain in place may change throughout the course of a prosecution as may the requirement to disclose to defence whether or not an order has been made. What may satisfy a judicial officer at the commencement of a prosecution may not satisfy a judicial officer at the time of trial. Section 138 orders are not final. If circumstances change the court may be required to vary or cancel the ex parte order previously made. That variation or cancellation may include a determination to disclose to defence whether or not an order has been made and, in some cases, its contents.
In some cases, the disclosure of the fact that an order has been made could frustrate the objects to which s 138 is addressed and could frustrate the purpose of any order made. However, that position may change. A hypothetical example would be if an order was made in relation to information obtained from one member of an outlaw motorcycle gang against another member. If an arrest occurred with one member being arrested and the other not being arrested, the mere knowledge that an order had been made, if known by the person arrested, may be sufficient to place the safety of the person who had provided the information and co‑operation in jeopardy. That position of risk to the safety of the informant may change over time.
Consistent with the purpose of the legislation an order that the fact of the making of an order not be disclosed to defence will only be made if the presiding judicial officer determines that the risk of disclosing that an order has or has not been made would potentially present a risk as serious as a risk to the safety of human life or to an important covert investigation. It is only if the judge determines there is a good reason to make the order and, in making the order, no miscarriage of justice will result, that an order pursuant to s 138(5) would be made.
Accordingly in my view the word 'given' and 'disclosed' should be interpreted according to its ordinary meaning.

Given the existence of a s 137A Criminal Procedure Act order is disclosed, should the fact an order dealing with public interest immunity made pursuant to s 138 be disclosed?

Section 137A CPA deals with exceptions to the prosecution's requirements in respect of disclosure.
The operation of sections 42, 61 and 95 is subject to -
(a)the Evidence Act 1906 sections 19C and 106HB(3); and
(aa)the Sentence Administration Act 2003 section 119C(2)(a); and
(ab)the Young Offenders Act 1994 section 16D(2)(a); and
(b)any other written law that relates to the disclosure of specific information; and
(c)the law on privilege; and
(d)the law on public interest immunity.
If an order is made pursuant to s 137A of the CPA the defence will receive notification that an application raising an exception to disclosure has been made and, if an order raising an exception to prosecution disclosure requirements is made, the fact that such an order has been made. The substance of the order will not be disclosed.
Although s 137A of the CPA deals with public interest immunity that does not mean that a s 138 application may not also public interest immunity grounds. If a s 138 order is granted, notification will not be disclosed to the defence of any order made in respect of the public interest immunity component of the order.
There are many reasons why public interest immunity may be raised by the prosecution or by a statutory body. Not all applications in relation to public interest immunity will raise issues of risk to the person or risk to a highly secure criminal investigation. However, if a public interest immunity issue raises matters of risk and the presiding judge is satisfied that an order dispensing with the requirement that the making of the order be given or disclosed to defence, being satisfied there is a good reason to do so and no miscarriage of justice will result, then the application should be brought pursuant to s 138. The fact that the application deals with public interest immunity issues does not preclude the making of an order pursuant to s 138(3) of the CPA.
It is implicit in the making of any order under s 138 that if disclosure of the fact that an order has been made would frustrate the purpose for which the order was made then the exercise of discretion not to disclose the making of the order pursuant to s 138(3) is appropriate even if the matter relates to public interest immunity concerns in whole or in part.

Is the non-disclosure of the existence (or non‑existence) of a s 138(3) order contrary to the principles of Kable's[27] case?

[27] Kable v The Director of Public Prosecutions for the State of New South Wales (1996) 189 CLR 51 (Kable).

The Applicant further submits the construction of s 138(3) favoured by the State and the Attorney General, limiting the meaning of the words 'given' or 'disclosed' so that the defence is not advised whether an order has been made, should be rejected. This is because the practical effect would be to immunise decisions made by the court from review for jurisdictional error. In the context of a decision made by the Supreme Court of Western Australia such a construction would preclude proper consideration of any appealable error which is inconsistent with the defining characteristics of a court.[28]
[28] Kable (114) (McHugh J).
The Kable doctrine, in the context of State legislation, was succinctly stated by Hinton J in Question of Law Reserved (No 1 of 2018):[29]
The limitation on State legislative power for which the Kable principle stands arises in the first place because the legislative power conferred by the constitutions of each State, which since federation have owed their existence to s 106 of the Constitution, is expressed by s 106 to be subject to the Constitution and by s 107 to be reduced to the extent of any withdrawal effected by the Constitution. In the second place, because s 77(iii) of the Constitution empowers the Federal Parliament to invest 'any court of a State with federal jurisdiction', it mandates that such body answer the constitutional description, a court of a State. The consequence of this is that a State legislature cannot confer on a court to which s 77(iii) applies a function that is incompatible with, or repugnant to, the role that s 77(iii) contemplates for such a court. Put slightly differently, the courts of the States in which the Federal Parliament may invest federal jurisdiction must at all times be 'courts' within the meaning of s 77(iii). In the third place, s 77(iii) contemplates that in the exercise of the judicial power of the Commonwealth no different grade of justice is administered as between federal courts and the courts of the States.
(footnotes omitted)
[29] Question of Law Reserved (No 1 of 2018) [2018] SASCFC 128; (2018) 275 A Crim R 400 [57] (Hinton J & Lovell J agreeing).

In Question of Law Reserved (No 1 of 2018), his Honour distinguished the State's position from the Commonwealth's position at [58]:
The limitation on State legislative power must, however, accommodate the fact that the separation of powers does not apply in the states. It is not the case then that a court of a State in which the judicial power of the Commonwealth may be invested must mirror in every respect a court created under Ch III of the Constitution. Chapter III creates an integrated national court system, not a uniform national court system. Accepting this, it follows that despite the fact that courts created under Ch III and the courts of the States may exercise the judicial power of the Commonwealth and that, in that regard, in the exercise of federal judicial power no different grade in the administration of justice is contemplated, the courts of the States are nonetheless different creatures which may perform functions that Ch III denies federal courts. Consequently, the conferral of a non-judicial function upon a court of a State will not of itself be enough to trigger the Kable principle. That said, 'though the existence of State courts depends on State law, and they remain State courts when co-opted into the federal Judicature, so that the Commonwealth Parliament must take such courts as it finds them', and though the courts of the States may be invested with non‑judicial functions, the Kable principle emphasises that the Constitution nonetheless insists that whatever function is conferred upon a court of a State by State legislation, or howsoever the court is structured, it must not lose its essential character as a court, fit to exercise the judicial power of the Commonwealth.
(footnotes omitted)
The defining characteristics of a State court are set out, but not exhaustively, in Assistant Commissioner Condon v Pompano Pty Ltd[30] by French CJ:
The respondents invoke the general principle, established in decisions of this Court, that a State legislature cannot confer upon a court of a State a function which impairs its institutional integrity and which is therefore incompatible with the role of that court as a repository of federal jurisdiction. The 'institutional integrity' of a court is said to be distorted if it no longer exhibits in some relevant aspect the defining characteristics which mark a court apart from other decision‑making bodies. The defining characteristics of courts include:
•the reality and appearance of decisional independence and impartiality;
•the application of procedural fairness;
•adherence as a general rule to the open court principle;
•the provision of reasons for the courts' decisions. …
(footnotes omitted)
[30] Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38 [67] (Assistant Commissioner Condon).
The Applicant submits being denied the knowledge that an order has been made and a right to appeal the reasons for any decision made distorts the institutional integrity of the court.
However, in addition to listing most of the defining characteristics of a court in Assistant Commissioner Condon, French CJ also commented on the need, on some occasions, for the open court principle to be qualified. French CJ stated the following:[31]
Both the open court principle and the hearing rule may be qualified by public interest considerations such as the protection of sensitive information and the identities of vulnerable witnesses, including informants in criminal matters.
[31] Assistant Commissioner Condon [68].
Factually, Assistant Commissioner Condon dealt with orders made under the Criminal Organisation Act 2009 (Qld) (the Act) in the absence of the respondent. Section 66 and s 70 of the Act required the court to consider applications to declare a particular organisation 'a criminal organisation' without notice to the respondent and in a 'special closed hearing'. The Criminal Organisation Public Interest Monitor (COPIM) but not the respondent was permitted to attend the hearing and to make submissions. Declared criminal intelligence could be relied upon in relation to an application for a declaration under s 10 of the Act, that is, that a particular organisation was a 'criminal organisation'. At the hearing of such an application the court was required by s 78 of the Act to exclude a s 10 organisation during any part of the hearing in which the declared criminal intelligence was to be considered. Further, legislative restrictions precluding an informant who had furnished criminal intelligence from being called applied.
In that case, it was held the impugned provisions were not repugnant to nor incompatible with, the institutional integrity of the Supreme Court. Hence, they were not invalid.[32]
[32] Assistant Commissioner Condon [89]; Gypsy Jokers Motorcycle Club Inc v The Commissioner of Police (2008) 234 CLR 532; K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501, discussed.
In Assistant Commissioner Condon the Act legislatively enabled the COPIM to be present in the absence of the respondent. The role of the COPIM was described in the Explanatory Notes of the Criminal Organisation Bill as 'in the nature of amicus curiae' who would 'assist the court in making a decision as an independent and impartial tribunal'. French CJ observed:[33]
As appears from the above, the COPIM does not act as an advocate for the interest of any respondent to applications in which the COPIM may be appear. The position of the COPIM resembles, to a very limited extent, that of the specially appointed advocates used in some jurisdictions in which closed ex parte hearings are held by courts or tribunals under statutory authority to consider material, the disclosure of which might prejudice national security, criminal investigations, or the identity and safety of informants, or otherwise be contrary to the public interest.
[33] Assistant Commissioner Condon [54].
Returning to the CPA, although s 138 does not enable a special advocate to be appointed, nor for a role similar to that of the COPIM, s 138 relies on the Office of the Director of Public Prosecutions (WA), given its obligations to the court[34] and the Director's continuing obligations as an officer of the State to ensure s 138 applications are only brought when the sort of dangers identified in the Explanatory Memorandum to s 138(4)(a) arise. Once identified by the State the court must exercise its discretion pursuant to s 138(3) to dispense with all or part of the disclosure requirements only after being satisfied there is a good reason to do so, and no miscarriage of justice will result.
[34] Director of Public Prosecutions for Western Australia - Statement of Prosecution Policy and Guidelines 2022.
The Applicant submits that unless disclosure of an order is made, the effect of making an order is to remove the supervisory role of the State's Supreme Court. In Kirk v Industrial Court of New South Wales[35] the court identified that s 73(ii) of the Commonwealth Constitution mandates a 'supervisory role' for State Supreme Courts, namely to confine inferior courts within the limits of their jurisdiction by granting relief, in the form of prohibition, certiorari and mandamus (and habeas corpus) on the ground of jurisdictional error. Consistent with the supervisory role, legislation which would take from the Supreme Court of a State the power to grant relief on account of jurisdictional error is beyond legislative power.[36] Accordingly, for the purposes of this application, s 138 should be given its widest interpretation and the orders sought by the Applicant should be made.
[35] Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 [55], [98] (Kirk).
[36] Kirk [110]; Attorney General's submission, par 36.
The Attorney General submits that s 138 does not preclude the court's supervisory role because any limitation would only arise after a number of steps had been undertaken. The Attorney General submits the effect of s 138 can be distinguished from legislative limits identified in Bodruddaza v Minister for Immigration and Multicultural Affairs and Graham v Minister for Immigration and Border Protection.[37] In those cases as a matter of substance the legislation was found to impermissibly curtail or limit the right or ability of Applicants to seek relief under s 75(v) of the Constitution.
[37] Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651 (Bodruddaza); Graham v Minister for Immigration and Border Protection: Te Puia v Minister for Immigration and Border Protection (2017) 263 CLR 1 (Graham).
In Bodruddaza the limitation provision set a finite period for an application to the High Court. Legislatively the court was prohibited from making an order allowing an Applicant to make an application outside of the finite period.[38]
[38] Attorney General's submission, par [39].
In Graham a scheme under the Migration Act 1958 (Cth) that enabled the Minister to act on 'confidential information' provided by 'gazetted agencies' which encompassed specific bodies, agencies or organisations responsible for (or who dealt with) law enforcement, criminal intelligence, criminal investigation, fraud or security intelligence in Australia or in a foreign country legislatively precluded the Minister from being required to divulge such information to any person or a court. This meant that information had to be withheld from the reviewing court irrespective of the importance of the information to the review to be conducted.[39] In both cases, a subversion of the constitutional purpose of the remedy provided by s 75(v) of the Commonwealth Constitution was found to be part of the form of the legislation.
[39] Graham[64].
In contrast s 138(5) does not have a limiting effect of the same type as in Bodruddaza and Graham. The potential limitation on the Supreme Court's jurisdiction only arises after the following steps have been undertaken:[40]
(a)First, a prosecutor must have made an application under s 138 on an ex parte basis.
(b)Second, the court, having considered the ex parte application, must have then determined, in respect of a disclosure requirement, that it could be dispensed with if there was a good reason to do so and no miscarriage of justice would result.
(c)Third, the court must not have granted the accused permission to be given or disclosed the order at the time of making the order, or subsequently (whether on the application of the accused, the prosecutor or on its own motion pursuant to s 138(2) and s 138(5)).
[40] Attorney General's submission, par 45.
The Attorney General submits that it is only at that final step ([78(c)] above), that the question of any restriction on the Supreme Court's jurisdiction could be said to arise. The issue only arises following the exercise of a specific discretionary power that is conferred upon the court. The interference with the Supreme Court's jurisdiction is not caused immediately or directly by the legislation as it was in Bodruddaza and Graham.
The Attorney General further submits that a decision under s 138(3) is an interlocutory decision that forms part of the broader criminal proceedings against an accused. In contrast, the decisions in Bodruddaza and Graham were final decisions. In this case, the Applicant's right of appeal under the Criminal Appeals Act 2004 (WA) remains in relation to the substantive issues. This right of appeal has been exercised in this case by the filing of an appeal against both conviction and sentence in the Court of Appeal.
Whether jurisdictional error attaches to a decision not to provide material whereby a miscarriage of justice has resulted is a different question from whether there is an appeal against a decision of this court or the Magistrates Court to make a decision under s 138. In a substantive appeal the Applicant is practically likely to consider that there has been a non-disclosure order application made by the prosecution if there is material the defence considers is relevant and should be available and that material has not been the subject of disclosure. Accordingly, through a challenged permission in relation to material that has impacted on the fairness of the trial, the Court of Appeal could, indirectly, bring this court's decision‑making within the supervisory jurisdiction of the Court of Appeal.
The Applicant submits that indirectly requiring the court's actions to be brought to the attention of the Court of Appeal is only a request for this court to review itself. Although this court can (and has) set up procedures for the ongoing review of s 138(3) and s 138(5) decisions, the Applicant submits the concerns of Kirk are not satisfied because there is no ability for the Court of Appeal to identify whether errors were made by this court.
A s 138 order is only made when the open court principle needs to be qualified by serious public interest considerations. The making of an order does not impact on the ability of the accused to substantively appeal. The Court of Appeal may indirectly request the District Court's determination be brought to its attention. No orders will be made nor remain in place, unless, following the exercise of judicial discretion, it is appropriate for the order to remain in place.
Taking into account the context, meaning and purpose of s 138, I am satisfied the definition of 'disclosed' in s 135(5) is a reference to disclosing the fact that an order has been made, not the substance of the order itself.
In the event that any orders were made, I have had the opportunity to consider, following conviction and sentence and on review of the relevant transcript, the matters I need to consider in relation to any s 138 of the CPA determination.
I make the following orders:
1.I dismiss the Applicant's application to have permission to be given or disclosed any order made in the absence of the Applicant pursuant to s 138(3)(a) of the Criminal Procedure Act 2004 (WA).
2.I dismiss the Applicant's application to be informed as to whether any other orders were made by this court or the Magistrates Court of Western Australia in the absence of the Applicant pursuant to s 138(3)(a) of the Criminal Procedure Act 2004 (WA).
3.I dismiss the Applicant's application to be provided with the transcript or recording of any hearing in the Applicant's absence in this court pursuant to s 138 of the Criminal Procedure Act 2004 (WA) including the application made on 5 May 2021.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
AR
Legal Research Officer to Chief Judge Wager
5 JUNE 2024