Nixon v Hayes No. Scgrg-99-560 Judgment No. S372
[1999] SASC 372
•8 September 1999
NIXON V HAYES
[1999] SASC 372
1 MARTIN J. The applicant is charged on information filed in the Adelaide Magistrates’ Court with taking part in the sale of cannabis. The Director of Public Prosecutions ("the Director") has filed witness statements as required by s 104 of the Summary Procedure Act 1921 for the purposes of a preliminary examination pursuant to ss105 and 106 of that Act. One of these statements is from a person identified only as "Jim".
2 The applicant seeks an order that the Director disclose forthwith to this Court all information required to be disclosed pursuant to s 24(5) of the Witness Protection Act 1996 ("the Act"). In addition, a ruling is sought that r 6A.01 of the Supreme Court Criminal Rules 1992 ("the Rules") does not prohibit the order from being made or, alternatively, if the rule does preclude such disclosure at this time, a finding that the rule is ultra vires.
3 The evidence of Jim is the principal evidence against the applicant. Following provision of the prosecution statements to the applicant’s solicitor, that solicitor wrote to the Director seeking extensive information about Jim. The information sought included advice as to whether Jim had been given any immunity from prosecution and "the placement of Jim at any time on Witness Protection Program".
4 The Director responded in writing advising that the witness had never been given immunity from prosecution. As to the issue of the Witness Protection Program, the Director advised in writing that he was precluded from disclosing that information by s 21 of the Act. He then invited attention to s 24 of the Act which he said appeared to contemplate that the information sought should be provided by the Director to the Supreme Court. In addition, the Director subsequently took the view that because a committal was to take place to either the District Court or the Supreme Court, the Rules require disclosure immediately after the first "status conference" under the Rules (now a directions hearing), and not earlier.
5 Section 106(1) of the Summary Procedure Act provides that a witness whose statement has been filed by the prosecution may only be called at the preliminary examination to give oral evidence with the leave of the court. Sub-section (2) directs that the court will not grant leave unless it is satisfied that there are special reasons for doing so. A number of criteria to be addressed by the court are set out in sub-s(3) and they include the interests of justice. Rule 20.02 of the Magistrates Court Rules requires a defendant to give notice in writing to the court and to the prosecution of any witness in relation to whom an application to examine orally will be made and a brief outline of the reasons for which the witness is required.
6 In essence, the applicant argued that unless he was aware of whether the witness Jim was a participant in the Witness Protection Program and, if so, of the details of any agreement that had been reached between the Commissioner of Police and the witness in connection with the program, he was unable to properly exercise his rights to seek to have the witness called pursuant to s 106(1) of the Summary Procedure Act. Counsel submitted that without such information he was unable to provide the necessary material required by a combination of s 106 and r 20.
7 It is necessary to examine the scheme put in place by the Act. It is an Act to establish a program to give protection and assistance to witnesses and other persons. Section 4 directs the Commissioner of Police to maintain a program to be known as the State Witness Protection Program ("the program"), under which the Commissioner and designated members of the police force arrange or provide protection and other assistance for witnesses. The sole responsibility for deciding whether to include a witness in the program rests with the Commissioner, but the Commissioner must not include a witness in the program unless satisfied that the witness has provided all information necessary for that decision to be made. Section 8(2) specifies the type of information that the witness must provide to the Commissioner and authorises the Commissioner to require the witness to undergo medical tests or examinations.
8 A number of matters are identified in s 9 to which the Commissioner must have regard in determining whether to include a witness in the program. One of the criteria the Commissioner must take into consideration is the nature of the perceived danger to the witness (s 9(3)(f)). A witness may only be included if the witness signs a Memorandum of Understanding in accordance with s 10.
9 It is apparent that one of the primary aims of the Act is to enable the Commissioner to provide protection for a witness through inclusion in the program. The Act contains a number of provisions designed to ensure appropriate confidentiality in order to achieve that aim.
10 The Commissioner must maintain a register of participants, but s 12 provides that only the Commissioner, designated police officers authorised by the Commissioner and, in limited circumstances, the Police Complaints Authority may have access to the register and to documents kept in conjunction with the register. Subsequent to certain restrictions, if the Commissioner is of the opinion that it is in the interests of the administration of justice to do so, s12(4) authorises the Commissioner to allow another person to have access to the register or part of the register or to some or all of the documents kept in conjunction with the register.
11 If a witness is included in the program, the Commissioner is authorised by s 13 to take such action as the Commissioner considers necessary and reasonable to protect the witness’s safety and welfare. A number of specific options are set out in s 13, including enabling the witness to establish a new identity and relocating the witness.
12 The strength of the provisions designed to maintain the anonymity of the witness and to prevent disclosure of the fact that a witness is included in the program is exemplified by ss 18 and 21. Section 18 provides that if a participant who has been provided with a new identity under the program would ordinarily be required under a law of the State to disclose the former identity, and if the Commissioner has given the participant permission not to disclose the former identity, the participant is not required to disclose that former identity. That protection is extended in those circumstances by s 18(2) which enables the participant to claim that the new identity is the only identity and to deny participation in a program.
13 Section 21(1) prohibits the disclosure of information about the identity or location of a person who is or has been a participant in a program or of information that compromises the security of such a person. Sub-section (2) prohibits the participant or a person who has undergone assessment for inclusion in the program as a participant from disclosing the fact of participation or the fact of undergoing assessment for inclusion in the program. There is also a prohibition on providing other specified information. The limit of the exceptions is as follows:
Sub-section (1) or (2) does not prevent a disclosure that -
(a) has been authorised by the Commissioner or relevant approved authority (if any); or
(b) is necessary for the purposes of an investigation by the Police Complaints Authority under Part 4 of the Police (Complaints and Disciplinary Proceedings) Act 1985; or
(c) is necessary to comply with, or is authorised by, an order of the Supreme Court."
14 The theme of confidentiality is continued by s 23. The Commissioner and Police Complaints Authority are not required to produce in court or before a tribunal or Royal Commission documents that have come into their custody or control in the course of, or because of, the performance of functions and duties under the Act. Similarly, they are not required to divulge or communicate to any such body, any matter or thing that has come to their notice in the performance of functions or duties under the Act. Limited exceptions are provided in sub-sections (3) and (5) of s 23.
15 It is in that context that s 24 must be considered. Section 24 is as follows:
"Disclosure of information where participant becomes a witness in criminal proceedings(1) If -
(a) a person is to be a witness in criminal proceedings for an indictable offence or a summary offence punishable by imprisonment ("the prospective witness"); and
(b) -
the person is a participant in a witness protection program; or
the person is a former participant in a witness protection program and retains a new identity provided under the program; or
steps have been taken with a view to including the person in a witness protection program,
the information specified in subsection (2) must be disclosed to the Director of Public Prosecutions by the prospective witness and, if the Commissioner is aware of the matters referred to in paragraphs (a) and (b), by the Commissioner.
The information required to be disclosed under subsection (1) is as follows:
(a) the fact that the prospective witness is a participant or former participant in a witness protection program or that steps have been taken with a view to including the prospective witness in a witness protection program; and
(b) if the prospective witness is a participant or former participant in a witness protection program - whether he or she has a new identity provided under the program; and
(c) if the prospective witness has a new identity provided under a witness protection program - whether he or she is to give evidence under his or her former identity or under the new identity; and
(d) if the prospective witness is to give evidence under a new identity and he or she has a criminal record under his or her former identity - details of that criminal record.If the Director of Public Prosecutions is provided with information under subsection (1) or otherwise becomes aware of the matters referred to in subsection (1)(a) and (b) in relation to the prospective witness, the Director may, by notice in writing given to the prospective witness, require him or her to disclose any further information as specified in the notice that the Director may reasonably require relating to the prospective witness and his or her participation or possible participation in the witness protection program that may be relevant to the prospective witness’s credibility as a witness in the proceedings.
If the prospective witness fails to comply with subsection (1) or a requirement of the Director of Public Prosecutions under subsection (3), he or she is guilty of an offence.
Maximum penalty: $5 000.(5) The Director of Public Prosecutions must disclose to the Supreme Court-
(a) the information provided to the Director under this section; and
(b) any other information within the knowledge of the Director relating to the prospective witness and his or her participation or possible participation in the witness protection program that may be relevant to -
the prospective witness’s credibility as a witness in the proceedings; or
the protection of the prospective witness’s safety and the integrity of the witness protection program.
(6) If the Court requires any further information relevant to the matters referred to in subsection (5)(b), the Director of Public Prosecutions must institute any necessary enquiries and disclose the results of the enquiries to the Court.
(7) Any enquiries instituted by the Director of Public Prosecutions under subsection (6) may include enquiries directed to -
(a) the prospective witness by notice or further notice under subsection (3); or
(b) the Commissioner (and for that purpose the Director is to be afforded all reasonable assistance and co-operation by the Commissioner).
The Court must be constituted of a judge in chambers for the purposes of this section and any disclosures under this section must be made by the Director of Public Prosecutions personally to the judge in the absence of any person other than the judge and the judge’s associate.
If the Court is of the opinion that non-disclosure of any information provided by the Director of Public Prosecutions under this section might prejudice the fair trial of a defendant in the proceedings, the Court may make such orders relating to the disclosure of the information to the defendant or the defendant’s legal representative and the use of the information as the Court considers necessary in the circumstances of the case, taking into account the need to protect the prospective witness’s safety and the integrity of the witness protection program.
No appeal lies against an order under this section or a decision of the Court not to make an order under this section.
In this section -
"Director of Public Prosecutions" includes a person acting in the position of Director of Public Prosecutions, the Deputy Director of Public Prosecutions or the Crown Counsel."
16 The scheme of s 24 is readily apparent. First it is designed to ensure that if a person is to be a witness in criminal proceedings for an indictable offence or a summary offence punishable by imprisonment ("the prospective witness"), and the person is a participant or former participant or steps have been taken with a view to including the prospective witness in the program, certain information specified in sub-s (2) must be disclosed to the Director. The duty of the Commissioner in this regard arises only when the prospective witness is to give evidence in connection with the more serious matters specified. Secondly, if the Director is provided with the information or becomes aware that the prospective witness fulfils the criteria mentioned, the Director is empowered to obtain further information from the prospective witness. The information the Director can obtain is information relating to the prospective witness and participation or possible participation in the program "that may be relevant to the prospective witness’s credibility as a witness in the proceedings".
17 The third step in the scheme of s 24 is the requirement that the Director must disclose to the Supreme Court the information gained or any other information known to the Director relating to the prospective witness’s participation or possible participation in the scheme that may be relevant to the prospective witness’s credibility as a witness in the proceedings or to the "protection of the prospective witness’s safety" and the "integrity" of the program. Subsequently the Supreme Court may require further information about those matters.
18 In keeping with other provisions concerning strict confidentiality, disclosure to the Supreme Court pursuant to s 24(5) may only be made in person by the Director, Acting Director, the Deputy Director or Crown Counsel. In addition, the disclosure may only be made to a judge in chambers who must receive that information in the absence of any person other than the judge’s associate.
19 Section 24 seeks to ensure disclosure of information to the Supreme Court concerning the prospective witness’s connection to the program that may be relevant to the prospective witness’s credibility as a witness in the proceedings. The section aims to achieve that disclosure in circumstances of strict confidentiality. When s 24 is viewed in conjunction with the earlier provisions to which I have referred, it is clear that, subject to specified exceptions, Parliament intended to maintain the strictest of confidentiality in connection with the fact of past or present participation or the fact of consideration for inclusion in the program.
20 Once disclosure has been made to the Supreme Court, the Director is relieved of any other obligation of disclosure concerning the connection of the prospective witness to the program that he would otherwise have had pursuant to statute or common law. The duty of determining whether disclosure of such information should be made to the person charged is transferred from the Director to the Supreme Court.
21 In carrying out the function imposed by s 24(9), the court is first required to first form an opinion as to whether non-disclosure of any information provided by the Director might prejudice the fair trial of the defendant. If the court forms that opinion, the court is given a discretion to make such orders relating to disclosure of the information to the defendant or the defendants’ legal representatives and as to the use of the information as the court considers necessary in the circumstances of the case. In exercising that discretion, the court is specifically required to take into account the need to protect both the witness’s safety and the integrity of the program.
22 In my opinion, while recognising that the interests of justice may require disclosure, Parliament has evinced a clear intention to give a high priority to the interests of protecting both witnesses and the integrity of the program. In particular, a defendant has no right to any information concerning participation or consideration as a participant in the program unless the Commissioner determines to the contrary pursuant to s 12(4) or the Supreme Court makes an order pursuant to s 24(4). These conditions of disclosure and the procedure laid down by the Act mean that a defendant does not possess any right to be heard as to what orders the court should make regarding disclosure of the information provided to it. The very act of informing a defendant that the court was considering such a matter would amount to providing the defendant with information that a prospective witness was a participant or former participant or that steps had been taken with a view to including that person in the program. That is precisely the information that Parliament has been at pains to ensure is not disclosed unless, in compliance with the Act, the Commissioner or the Supreme Court determine that it should be disclosed.
23 As to the timing of disclosure by the Director to the Supreme Court, the applicant contended it should occur prior to the preliminary examination. In order to succeed with that proposition, it was necessary for the applicant to deal with r 6A.01 of the Rules which is in the following terms:
"6A.01 Disclosure of the information required in subsection (5) of Section 24 of the Witness Protection Act 1996 (‘The Act’) shall be made by the Director of Public Prosecutions (‘the Director’):
(a) Where the proceedings are in the Supreme Court or the District Court, immediately after the first status conference under the Rules;
(b) Where the proceedings are in the Magistrates Court, immediately after the first pre-trial conference;
(c) Where the Director is not aware of the circumstances referred to in subsection 24(1) at the times referred to in (a) or (b) above, forthwith after the Director shall become aware of them."
24 The Act does not expressly state when the Director is obliged to make disclosure to the Supreme Court. The obligation imposed on the Commissioner to make disclosure to the Director arises once it is determined that a person of the identified type is to be a witness in the relevant proceedings. The information set out in s 24(2) that the Commissioner is required to disclose to the Director is information relevant to the credit of the prospective witness. Similarly, the Director may require additional information that may be relevant to the prospective witness’s credit. The Director is obliged to disclose to the Supreme Court the information received pursuant to sub-s (2) and any other information that may be relevant to the witness’s credit.
25 The issue of the timing of the disclosure must, therefore, be considered in the context of disclosure of information relevant to the prospective witness’s credit. In addition, regard must also be had to the issues to be considered by the court in determining whether to make orders relating to disclosure. The primary question is whether non-disclosure might prejudice the fair trial of a defendant. Parliament envisaged that the court would have in its possession information relevant to the credit of a defendant upon which the court could reach a view that non-disclosure might prejudice a fair trial. Parliament must also have intended that the court would be possessed of sufficient knowledge of matters such as the nature and circumstances of the Crown case and possible issues at trial in order to arrive at an appropriately informed decision as to whether non-disclosure of the information in its possession might prejudice a fair trial. The Court is more likely to possess such knowledge at the time specified in the rules than prior to a preliminary examination.
26 Counsel for the applicant first submitted that r 6A.01 did not preclude the Director from disclosing the information to the Court at a time earlier than specified in the rule. It is clear that the intention of the rule is to require disclosure only when a matter is to proceed to trial in one of the three nominated courts. This intention accords with the intention of Parliament. Bearing in mind the evident intention of Parliament concerning confidentiality to which I have referred, and also bearing in mind that the information to be disclosed is relevant only to credit, in other than the exceptional circumstance where the evidence of the prospective witness is critical to a significant dispute as to the factual basis for sentencing, no occasion for disclosure will arise unless the matter is to proceed to trial. In making that observation I leave aside the suggested impact on the defendant’s right to seek to have a witness called to give evidence at the preliminary examination which is discussed later in these reasons.
27 Rule 6A.01 is mandatory in its terms and directs disclosure to the court at the specified times which is capable of being construed as excluding disclosure prior to a preliminary examination. I doubt that the Rule is intended to exclude earlier disclosure but, if it does, the Court possesses the power to dispense with compliance with the Rules (r 17.01). It is open to the Director to apply to the Court for an order dispensing with compliance with r 6A.01 to the extent that the Rule directs disclosure to be made after a preliminary examination. For the reasons that follow, however, it is difficult to envisage the circumstances in which the Director would make such an application. However, the possibility should not be excluded. A defendant does not have any standing to require the Director to make such an application. It is a matter entirely within the discretion of the Director who is entitled to act in accordance with the rules.
28 A fundamental consideration to be addressed by both the Commissioner and the Supreme Court is the interests of justice in securing a fair trial for a defendant. If the Director reached the view that a failure to disclose information received pursuant to the Act prior to the preliminary examination might be contrary to the interests of justice and might prejudice a fair trial of a defendant, it would be appropriate for the Director to apply to the Supreme Court for an order dispensing with compliance with r 6A.01 to the extent that the Rule directs disclosure be made at a time subsequent to a preliminary examination. The Court would then be in a position to determine whether the circumstances required that it dispense with compliance and direct disclosure prior to the preliminary examination.
29 In considering this issue, it is essential to bear in mind the purpose and limits of the preliminary examination. In Goldsmith v Newman and the State of South Australia (1992) 59 SASR 404, King CJ with whom Duggan J agreed made the following observations (p 410):
"The purposes and function of preliminary hearings of charges of indictable crimes was discussed in my reasons for judgment in R v Harry: Ex parte Eastway [(1985) 39 SASR 203] and it is unnecessary to repeat that discussion. What was there said remains valid subject to the modifications necessarily inherent in the new provisions. The new provisions have modified the purposes and function of preliminary hearings in three ways. First, proof of facts by means of statements in writing without oral examination or cross-examination has been made the norm. Secondly, issues of credibility are withdrawn from the court conducting a preliminary hearing. The test posed in s107(1) for sufficiency of the evidence to put the defendant on trial is that "the evidence, if accepted, would prove every element of the offence". It is no longer open to the court to refuse to commit on the ground that the evidence, although sufficient in law, is too weak or unsatisfactory, by reason of lack of credibility of prosecution witnesses, to justify putting the defendant on trial. Thirdly, issues of admissibility are to be left to the trial court and the evidence is to be admitted at the preliminary hearing unless admissibility is unarguable. Fourthly, oral evidence is to be allowed if, but only if, special reasons exist for permitting such evidence." (my emphasis)
30 The information concerning the connection between the witness and the programme is relevant only to the credit of the witness. Issues of credit having been withdrawn from the court conducting the preliminary examination, it is difficult to envisage circumstances when the interests of justice would require the court to dispense with compliance with the rule and direct disclosure prior to the preliminary examination. In this context it is relevant to bear in mind that if a trial court is satisfied that cross-examination of a witness prior to the giving of evidence before a jury should be permitted, the Court has a discretion to permit such cross-examination on a voir dire. In my opinion, therefore, while it is theoretically open to the Director to apply for the order mentioned, whether an application is made is a matter purely for the discretion of the Director and it would be made in only the rarest of circumstances.
31 While the absence of a defendant from this process means that the Court is without assistance from that source, it must be recognised that the prosecuting authorities who usually make decisions concerning disclosure in criminal matters generally reach their decisions without the benefit of submissions from a defendant. The legislation places the Court in the same position. In those circumstances, it is obvious that the Director has a heavy responsibility in ensuring that the Court is provided with accurate information. Bearing in mind the continuing nature of the usual obligation of disclosure in criminal matters, the obligation of the Director to the Court pursuant to the Act is similarly of a continuing nature.
32 The applicant attacked the validity of r 6A.01 and, in the alternative, suggested the ambit of the rule should be read down. Counsel submitted that the Rule impacts adversely on the right of a defendant to seek to have a witness called to give evidence of the preliminary examination. In my opinion this contention is without substance. The Rule does not derogate in any relevant manner from the right of a defendant to apply to a magistrate for an order that a witness be called to give oral evidence. While the Rule deprives a defendant of information that a defendant might attempt to use as a basis for satisfying a magistrate that special reasons exist to call the witness at the preliminary examination, the information is relevant only to the credit of the witness and issues of credit are not relevant to the court conducting the preliminary examination. Even if it could be argued that there may be some circumstances in which matters of credit are relevant to the question of special reasons, in my opinion any disadvantage to a defendant in not being possessed of the information under consideration does not amount to an interference with or derogation from any rights possessed by a defendant in a manner which would justify reading down or striking out the Rule. Counsel referred to the decisions of the High Court in Bropho v State of Western Australia and Anor (1990) 171 CLR 1 at 16-18, and Coco v The Queen (1994) 179 CLR 427 at 436 and 437. In the passages to which counsel referred, the court was concerned with the abrogation or curtailment of fundamental common law principles or rights. This is not such a case.
33 In my opinion r 6A.01 should not be read down in the manner suggested by the applicant. Section 72 of the Supreme Court Act 1935 empowers the Court to make rules for "regulating the pleading, practice and procedure of the court in any jurisdiction, and the initiating of actions and proceedings therein:". In my opinion r 6A.01 is a valid rule concerned with the practice and the procedure of the court.
34 The application is dismissed.
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