Polley v Johnson and Smith Gillard v Johnson and Smith Ward and Ward v Higgs, Smith and Edwards
[2013] NSWSC 543
•15 May 2013
Supreme Court
New South Wales
Medium Neutral Citation: Polley v Johnson and Smith Gillard v Johnson and Smith Ward and Ward v Higgs, Smith and Edwards [2013] NSWSC 543 Hearing dates: 30 April 2013 Decision date: 15 May 2013 Jurisdiction: Common Law Before: Bellew J Decision: (1)In each of proceedings 2012/ 271291(referred to in the judgment as "the Gillard proceedings") and proceedings 2012/271413 (referred to in the judgment as "the Polley proceedings"):
(i)there shall be no access to the documents produced to the court by the second defendant pursuant to the notice to produce first returnable on 19 September 2012, on the basis of public interest immunity;
(ii)the documents referred in order 1(i) shall be placed on the court file and sealed in an envelope marked "not to be opened, save by order of a Judge of this Court";
(iii)the confidential affidavit of Alan John Clarke sworn 20 December 2012 along with confidential exhibits AJC-1 and AJC-2, such documents forming part of exhibit A in the proceedings before me, are returned to the Commissioner of Police herewith.
(2)In proceedings 2012/292276 (referred to in the judgment as "the Ward proceedings"):
(i)there shall be no access to the documents produced to the court by the second and third defendants pursuant to notices to produce first returnable on 2 October 2012, on the basis of public interest immunity;
(ii)the documents referred to in order 2(i) above shall be placed on the court file in an envelope marked "not to be opened save by order of a Judge of this Court";
(iii)the confidential affidavit of Peter Edward Dein sworn 22 November 2012 along with confidential affidavits PED-1 and PED-2, which formed exhibit B in the proceedings before me, are returned to the Commissioner of Police herewith.
Catchwords: PUBLIC INTEREST IMMUNITY - where principal proceedings challenge validity of search warrants and crime scene warrant - where notice to produce issued seeking documents relevant to the issue of warrants - where claim for public interest immunity made over part of the material - need to establish legitimate forensic purpose - whether stated purpose amounted to "fishing" - no legitimate forensic purpose established - where balancing exercise would have favoured the claim being upheld in any event - claim upheld. Legislation Cited: Crimes Act 1900
Evidence Act 1995
Firearms Act 1996
Law Enforcement (Powers and Responsibilities) Regulations 2005Cases Cited: Air Canada v Secretary of State for Trade [1983] 2 AC 394
Alister v R [1984] HCA 35; (1984) 154 CLR 404
Attorney-General (NSW) v Chidgey [2008] NSWCCA 65; (2008) 182 A Crim R 536
Attorney-General (NSW) v Lipton [2012] NSWCCA 156
Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667
Derbas v R [2012] NSWCCA 14
George v Rockett [1990] HCA26; (1990) 170 CLR 104
Hilton v Wells and ors (1985) 59 ALR 281
R v De Bono [2012] v VSC 476
R v Saleam [1999] NSWCCA 86
R v Tastan (1994) 75 A Crim R 498
Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1
State of NSW v Public Transport Ticketing Corporation [2011] NSWCA 60Category: Procedural and other rulings Parties: PROCEDINGS 2012/271413
Michelle Elizabeth Polley - Plaintiff
Belinda Johnson - First Defendant
Holly Wraith Smith - Second defendantPROCEEDINGS 2012/271291
PROCEEDINGS 2012/292276
Michael John Gillard - Plaintiff
Belinda Johnson - First Defendant
Holly Wraith Smith - Second defendant
Robin Ward - First Plaintiff
Carol Ward - Second Plaintiff
Joshua Higgs - First Defendant
Holly Wraith Smith - Second defendant
Robin Edwards - Third defendantRepresentation: Mr G Niven - Plaintiffs (in each case)
Crown Solicitor for New South Wales - Commissioner of Police for NSW
Ms M England - Commissioner of Police for NSW
Mr P Latham, Legal Aid New South Wales - Plaintiffs
File Number(s): 2012 / 271413 2012 / 271291 2012 / 292276
Judgment
INTRODUCTION
The plaintiffs in each of these three matters have brought proceedings seeking (inter alia) declaratory relief in respect of a number of warrants issued at the request of members of the New South Wales Police. The matters have come before me for the purpose of resolving a claim for public interest immunity made by the Commissioner of Police for New South Wales ("the Commissioner") over parts of certain documents which are the subject of notices to produce.
A large amount of affidavit material was read and relied upon by each of the plaintiffs. There was no objection to that material, but counsel for the Commissioner submitted that in light of the narrow issue, the weight which ought be ascribed to such material was minimal. Having read the entirety of that material there is, in my view, merit in that submission. Much of the affidavit material deals with matters which may well bear upon the issues which will ultimately be adjudicated upon, but which appear to have little or no bearing upon the specific issue that I am required to determine. The material does, however, set out some relevant background to the institution of the principal proceedings. It is necessary for me to summarise that background in order to put the current issue into some context.
FACTUAL BACKGROUND
Three separate sets of proceedings have been commenced, namely:
(i) Proceedings 2012/292276 - Ward and Ward v Higgs, Smith and Edwards ("the Ward proceedings");
(ii) Proceedings 2012/271291 - Gillard v Johnson and Smith ("the Gillard proceedings");
(iii) Proceedings 2012/271414 - Polley v Johnson and Smith ("the Polley proceedings").
Whilst the issue that I am required to determine is the same in each case, the background to the Ward proceedings differs slightly from the background to the Gillard and Polley proceedings.
The Ward proceedings
On 1 February 2012, the first defendant (who is a police officer) made application to the second defendant (who is the Registrar of the Dubbo Local Court) for the issue of a search warrant in respect of premises at Wellington in which the plaintiffs resided. On 1 February 2012, the second defendant issued a search warrant in respect of those premises and that warrant was executed on the same day.
On 30 March 2012 the first defendant applied to the third defendant (the Registrar of the Wellington Local Court) for the issue of a crime scene warrant in respect of the same premises as those to which the search warrant had related. The third defendant issued the crime scene warrant on 30 March 2012, and that warrant was executed on the same day.
On 30 May 2012, Court Attendance Notices were issued against the first named plaintiff alleging (inter alia) offences under the Firearms Act 1996. Those matters first came before the Wellington Local Court on 20 July 2012. Since that time, they have been repeatedly adjourned pending the finalisation of the proceedings which have been commenced in this court.
On 24 July 2012 the plaintiffs sought access to both the search warrant and the crime scene warrant, as well as other documents relating to their issue, which were held at the Dubbo Local Court and the Wellington Local Court respectively. In each case, the second and third defendants wrote to the solicitor for the plaintiffs advising that a certificate pursuant to cl. 11 of the Law Enforcement (Powers and Responsibilities) Regulations 2005 ("the Regulations") had been issued. Based on those certificates, the second and third defendants each indicated that they were satisfied that the documents to which access was sought contained material that may, if disclosed, seriously comprise police investigations.
Following further correspondence, the solicitor for the plaintiffs was permitted to inspect, in the case of both the search warrant and the crime scene warrant, unredacted copies of:
(i) each warrant;
(ii) the occupier's notice issued in respect of each warrant; and
(iii) the report to the issuing officer concerning the execution of each warrant.
Further, the plaintiff's solicitor was permitted to inspect a redacted copy of the application for the search warrant which did not disclose:
(i) the grounds which supported the application; or
(ii) the particulars of those grounds.
In respect of the crime scene warrant, the plaintiff's solicitor was permitted to inspect a redacted copy of the application for the warrant which did not disclose:
(i) the grounds which support the application;
(ii) the particulars of those grounds; or
(iii) part of the additional information provided by the first defendant.
On 19 September 2012, the plaintiffs filed a summons in this court seeking (inter alia):
(i) an order permitting inspection of the application for each warrant, and the issuing officer's record of such application;
(ii) a declaration that each warrant was invalid;
(iii) an order in the nature of certiorari quashing each warrant; and
(iv) a declaration that the execution of each warrant was unlawful.
In association with those proceedings, the plaintiffs issued a notice to produce to each of the second and third defendants seeking production of the entirety of the documents which were held in relation to the issue of both the search warrant and the crime scene warrant. Each of the second and third defendants forwarded documents to the registrar in answer to the notice. Subsequently, edited copies of those documents were produced to the court by the Commissioner following a review of their contents.
The plaintiffs seek access to unredacted copies of each of the documents produced. The Commissioner makes a claim for public interest immunity and accordingly resists access being granted.
The Gillard proceedings and the Polley proceedings
On 30 December 2011, the first defendant in each of these proceedings (who is a police officer) made application to the second defendant in each (who is the Registrar of the Dubbo Local Court) for the issue of search warrant in respect of each of the premises at which the respective plaintiffs resided.
The second defendant issued both warrants on 30 December 2011, and they were executed on that day.
On the same day, the plaintiff in the Gillard proceedings was charged with two offences, namely:
(i) threatening or intimidating a victim or witness (Crimes Act 1900 s. 315A); and
(ii) hindering an investigation (Crimes Act s. 315(1)(a).
The hearing of those charges came before the Dubbo Local Court on 29 June 2012. Following the evidence called by the prosecution from the alleged victim, both charges were withdrawn and were subsequently dismissed.
On 5 July 2012, the solicitor for each plaintiff wrote to the second defendant seeking access to certain documents relating to the warrants. Subsequently, the solicitor for each of the plaintiffs was permitted to inspect:
(i) the warrants themselves;
(ii) the occupier's notice issued in respect of each warrant; and
(iii) the report to the issuing officer issued in respect of each warrant.
On 27 August 2012, each of the plaintiffs filed a summons in this court seeking (inter alia):
(i) an order permitting inspection of the application for each warrant along with the issuing officer's record of application for each;
(ii) a declaration that each warrant was invalid;
(iii) an order in the nature of certiorari quashing each warrant; and
(iv) a declaration that the execution of each warrant was unlawful.
On 3 September 2012, each plaintiff issued a notice to produce to the second defendant seeking the production of the entirety of the documents which were held in relation to the issue of each warrant. The same course was taken by the Commissioner as that outlined in paragraphs [13] - [14] and which was taken in the Ward proceedings.
THE evidence relied upon by the Commissioner
In the Ward proceedings, the Commissioner relied upon:
(i) an open affidavit of Alan John Clarke sworn 20 December 2012; and
(ii) a confidential affidavit of Alan John Clarke sworn on the same day along with confidential exhibits AJC-1 and AJC-2.
The confidential affidavit and exhibits were marked exhibit A in the proceedings. I have read that material in its entirety.
In the Ward proceedings, the claim for public interest immunity is made in respect of:
(i) the highlighted parts of the application for the search warrant, a copy of which is contained in confidential exhibit AJC - 1;
(ii) the highlighted parts of the application for the crime scene warrant contained in confidential exhibit AJC - 2;
In each of the Gillard and Polley proceedings, the Commissioner relied upon:
(i) an open affidavit of Peter Edward Dein sworn 22 November 2012;
(ii) a confidential affidavit of Peter Edward Dein sworn on the same day with confidential exhibits PED-1 and PED-2.
The confidential affidavit and exhibits were marked exhibit B in the proceedings. I have also read that material in its entirety.
In the Gillard proceedings the claim for public interest immunity is made in respect of:
(i) the highlighted parts of the application for the search warrant, a copy of which is contained in confidential exhibit PED 1.
In the Polley proceedings the claim for public interest immunity is made in respect of:
(i) the highlighted parts of the application for the search warrant, a copy of which is contained in confidential exhibit PED -2.
THE GOVERNING LAW
In their respective written submissions, counsel for each party addressed the question of whether the Commissioner's claim should be resolved by reference to common law principles, or by reference to the provisions of s. 130 of the Evidence Act 1995. In short, counsel for the Commissioner submitted that common law principles applied, and counsel for the plaintiffs agreed with that approach.
In the present case, it is the Commissioner who has claimed public interest immunity. However, it was not the Commissioner who produced the documents to the court pursuant to the various notices to produce. In Derbas v R [2012] NSWCCA 14 Meagher JA (at [6] - [8]) concluded that in circumstances where the person producing the documents and the person making the claim were not the same, the correct approach was to address the claim by reference to common law principles, and not by reference to s. 130 of the Evidence Act. His Honour concluded that s. 130 did not, in its terms, apply to such circumstances. He also concluded that the provisions of s. 131A did not operate to apply s. 130. In doing so, his Honour applied the decision in State of NSW v Public Transport Ticketing Corporation [2011] NSWCA 60.
In a subsequent decision of Attorney-General (NSW) v Lipton [2012] NSWCCA 156 (a case in which the Commissioner had both produced the documents to the court and made the claim for public interest immunity) Basten JA (commencing at [27]) made various observations (by way of obiter) as to the decisions in Derbas (supra) and State of NSW v Public Transport Ticketing Corporation (supra). In doing so, his Honour expressed some doubt as to the proposition advanced by counsel for the Crown in Derbas that the provisions of s. 130 effectively reflected the position at common law and that accordingly, nothing turned on the question of whether a claim for public interest immunity was determined by reference to the Evidence Act on the one hand, or the common law on the other. I note that a similar submission was made by counsel for the Commissioner in the present case.
Having made reference (at [34]) to what he described as "unity of the producer and the objector" which existed in Lipton, Basten JA concluded that it was not necessary to raise any question as to the correctness of the decisions in Derbas and State of NSW v Public Transport Ticketing Corporation.
It was in these circumstances that the parties in the present case submitted that the Commissioner's claim in each case was to be resolved by the application of common law principles. Having regard to the decision of Meagher JA in Derbas, I accept that submission and have determined the matter accordingly.
The nature of a claim for public interest immunity
There was no dispute between the parties as to the nature of the claim made by the Commissioner in each of the present cases, nor was there any dispute that the Commissioner had the requisite standing to make those claims. Moreover, the parties were in agreement as to the process which is to be adopted when the court is asked to determine such a claim. That process was set out in Alister v R [1984] HCA 35; (1984) 154 CLR 404, where Gibbs CJ (at 412) confirmed the approach previously set out in Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1:
"Sankei v Whitlam establishes that when one party to litigation seeks the production of documents, and objection is taken that it would be against a public interest to produce them, the court is required to consider two conflicting aspects of the public interest, namely whether harm would be done by the production of the documents, and whether administration of justice would be frustrated or impaired if the documents were withheld, and to decide which of those aspects predominates. The final step in this process - the balancing exercise - can only be taken when it appears that both aspects of the public interest do require consideration - i.e., when it appears, on the one hand, that damage would be done to the public interest by producing the documents sought or documents of that class, and, on the other hand, that there are or are likely to be documents which contain material evidence. The court can then consider the nature of the injury which the nation or the public service would be likely to suffer, and the evidentiary value and importance of the documents in the particular litigation."
The parties agreed that the process to be followed in order to resolve the claims made by the Commissioner involved three steps, namely:
(i) each of the plaintiffs must establish a legitimate forensic purpose;
(ii) the Commissioner must establish the claim for public interest immunity; and
(iii) the court must then undertake the balancing exercise referred to in Alister above and make a determination as to whether or not the claim ought be upheld.
Have the plaintiffs demonstrated a Legitimate forensic purpose?
The submissions of the parties
Counsel for the Commissioner submitted that the question of whether the plaintiffs had demonstrated a legitimate forensic purpose was essentially a threshold one, and that it followed that unless such purpose could be demonstrated, the claim in each case was to be resolved in favour of the Commissioner. I did not understand counsel for the plaintiffs to argue against that proposition.
In written submissions, counsel for the plaintiffs had submitted had that a central issue in each case was whether, in exercising their respective duties relating to the issue of the warrants, the defendants had done so properly. He explained that on this basis (as well as others) the plaintiffs will seek to challenge the validity of the warrants. Counsel submitted that an examination of an unredacted copy of the application for each warrant, together with an examination of an unredacted copy of the record of each application, was crucial to the case brought by the plaintiffs. In oral submissions, counsel further explained that in each case it will be argued by the plaintiffs that the applications for the warrants were made, and the warrants issued, without just cause (at T 7 L 10).
When asked to articulate the legitimate forensic purpose in more precise terms, counsel for the plaintiffs (in reference, as I understood it, to all of the documents to which access is sought in the three sets of proceedings) said (at T 7 L 43 and following):
"The legitimate forensic purpose, in our submission...is in establishing whether or not the information provided by police to the authorising Justice for the issue of that search warrant was accurate or accurate enough to provide reasonable grounds for the issuing of the warrant" (my emphasis).
Having explained that it was part of the case for each of the plaintiffs that the warrants should never have been issued having regard to the information which was provided at the time, counsel for the plaintiffs went on to say (at T 8 L 11):
"In order for the plaintiffs to investigate that matter, they need to know what information was put before the authorising officer by police so that the plaintiffs are able to present their case in a proper and fully investigated fashion before this court. We just simply cannot tell your Honour what that is, because we have not seen it, other than to say that the plaintiffs have at all times said to the Crown; we don't wish to know the identity of persons who are the subject of proceedings in relation to the person Gillard, which have been withdrawn and dismissed by the prosecution and in relation to the Polley matter about which no proceedings have ever been taken" (my emphasis).
Later, counsel submitted (at T 8 L 21) that the plaintiffs' legal representatives should be able to view the material for the following reason:
"In our submission there is, if your Honour was not against the proposition that the plaintiffs were able to have physical access to the documents, that they would be, at least through their legal representatives, able to view that material to ascertain whether or not any of it is of any forensic purpose, for the purposes of prosecuting the plaintiffs' claims.
It may be that scenario one is that there is nothing there. Scenario two is that it further adds to show that the information provided to the authorising Justice by the investigating police was inaccurate or misleading, in which event it is submitted that, on its face, it would be material that would be relevant and pertinent of the plaintiffs' claim elsewhere" (my emphasis).
Counsel also explained that it will be part of the case brought by each plaintiff that there was no presumption of regularity governing the issue of warrants, and that warrants must show, on their face, that all statutory conditions precedent to their issue have been met. By reference to those propositions, and in further articulating what was said to be the legitimate forensic purpose, counsel said (at T8 L35 and following):
"In order to establish that, we say we need to have access to that information and this has been denied to us" (my emphasis).
Counsel further explained that it was part of the case for each plaintiff that there were a number of identified deficiencies in each of the warrants. This, he submitted (at T8 L43) was:
"...the basis for a forensic examination of the full document without which we say these other matters, which are apparent on their face, defects in the warrants themselves, or it may be, your Honour, that they have no value to the plaintiffs at all but we don't know" (my emphasis).
Counsel for the Commissioner submitted that those parts of the transcript extracted above disclosed a fishing expedition on the part of the plaintiffs, rather than a legitimate forensic purpose. Counsel submitted that it was apparent from those statements made by counsel for the plaintiffs that access was really being sought for the purposes of (inter alia) checking to determine whether or not statutory preconditions to the issue of the warrants had been satisfied. This, counsel for the Commissioner submitted, was impermissible fishing.
Counsel further submitted that having regard to those passages of the transcript I have previously set out, it was apparent that part of the purpose for which access to the documents was being sought by the plaintiffs was to allow them to determine whether or not they had a case against the respective defendants at all. It was further submitted that the reference, by counsel for the plaintiffs to the necessity to view the material "to ascertain whether or not any of it is of any forensic purpose" was a clear indication that no legitimate forensic purpose had been established.
The relevant principles
The authorities dealing with public interest immunity claims establish a number of principles which are relevant to the present application. Those principles may be summarised as follows.
Whether or not a party seeking access to documents has established a legitimate forensic purpose is, as counsel for the Commissioner submitted, a threshold question. In Derbas (supra) Meagher JA (with whom the other members of the court agreed) said (at [21]):
"As is pointed out in Alister v The Queen [1984] HCA 85; (1984) 154 CLR 404, where a party seeks the production of, and access to, documents in respect of which a claim to immunity is made, the party seeking access first must demonstrate a legitimate forensic purpose for having the documents produced. It is only in the event that such a purpose is demonstrated, that both aspects of the public interest require consideration by the undertaking of the balancing exercise ....."
It is not sufficient, in order to establish a legitimate forensic purpose, to merely establish that the documents in question are relevant. In Carroll v Attorney General (NSW) (1993) 70 A Crim R 162, Mahoney AP said (at 181-182):
"...the court must, in general, be satisfied that the documents are relevant to an issue for decision by the court in the litigation. It is not open to a party, as on a "fishing expedition", to subpoena documents merely in order to determine whether they may be relevant and may be of assistance to his case in the proceeding." (emphasis in argument).
His Honour went on to say (at 182):
"In the case in which the party did not know what was the nature or the contents of the documents, the position would be plain. He could not claim to look at the documents merely to see whether they contained something which might be relevant or help his case. "
The judgment of Mahoney AP in Carroll was cited with approval by Beazley JA in Attorney-General (NSW) v Chidgey [2008] NSWCCA 65; (2008) 182 A Crim R 536 at 550; [59]-[60].
The party seeking access to material over which a claim for public interest immunity is made must establish that it is "on the cards" that the documents to which access is sought will materially assist that party's case (see R v Saleam [1999] NSWCCA 86 at [11] per Simpson J, Spigelman CJ and Studdert J agreeing, cited with approval in Chidgey (supra) at 551;[64] per Beazley JA). If, in seeking access to documents, a party is doing nothing more than attempting to obtain documents to determine if they will assist the case, or to determine whether there is a case at all, then no legitimate forensic will have been made out (see R v Tastan (1994) 75 A Crim R 498 at 506).
Finally, and even in circumstances where the relevant documents are readily identifiable, it is not a legitimate forensic purpose to seek access to documents in order to check whether relevant requirements have been met. In Chidgey (supra) Beazley JA (at 556; [84]-[85]) said:
"Notwithstanding that the subpoena sought documents that were identifiable, I am of the opinion that the legitimate forensic purpose identified by the Magistrate amounts to no more than a proposition that the respondent was entitled to engage in a "fishing expedition" to ascertain whether there had been compliance with s 5(2A). That is apparent from the terms in which the Magistrate identified the forensic purpose. There was no material before the Magistrate to indicate that there had been, or might have been, non-compliance with s 5(2A).
[85] This is acknowledged in his Honour's comment that there should be access to the documents to enable the respondent to check whether there had been compliance with s 5(2A). In other words, the Magistrate identified the legitimate forensic purpose in terms that meant the respondent needed to have access to the documents "to discover whether he has a case at all": see Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 575. As Jordan CJ stated in that case, a party is not entitled to use a subpoena for that purpose."
Consideration and conclusion
In my view, bearing in mind the terms in which the asserted legitimate forensic purpose was articulated by counsel for the plaintiffs, no such purpose has been demonstrated. Indeed in my view, the terms in which the asserted purpose was articulated contravene a number of the principles to which I have referred. I have come to this view for several reasons.
Firstly, as I have previously set out, the forensic purpose was, in part, articulated as "establishing whether or not the information provided by police...for the issue of (the search warrant) was accurate". Stated in those terms, part of the purpose for which the plaintiffs seek access to the documents is to check whether certain requirements have been met or alternatively, to allow the plaintiffs to determine whether or not they have a case at all. On either basis, a legitimate forensic purpose is not made out.
Secondly, as I have outlined, counsel for the plaintiffs submitted that it was necessary that the plaintiffs be able to view the material "to ascertain whether or not any of it is of any forensic purpose". Inherent in that proposition is that no forensic purpose is made out, and that access to the material is required in order to determine whether such purpose in fact exists.
Thirdly, as counsel for the plaintiffs explained, access to the material was required "in order to establish" whether relevant conditions precedent had been met. That is simply another way of saying that access to the material is required in order to check whether there has been compliance with such conditions. As Beazley JA pointed out in Chidgey (supra) that amounts to the proposition that access to the material is required in order to discover whether there is a case at all. Such a course amounts to impermissible fishing.
Finally, it is apparent from the submissions made by counsel, and the terms in which the asserted legitimate forensic purpose were articulated, that the plaintiffs are not aware of whether or not the material to which access is sought is of any value whatsoever to their respective cases, because they are not aware of its content. In particular, counsel for the plaintiffs expressly conceded (in the extracts of the transcript set out in [40] and [42] above) that it was possible that the material had no value at all. Three particular observations arising from that concession should be made.
The first, is that the concession bespeaks of a fishing expedition to determine whether there is anything of value. That, obviously, is far removed from a legitimate forensic purpose.
The second, is that because the plaintiffs are unaware of the content of the material, they are necessariily unable to demonstrate whether it has any relevance. As Mahoney AP observed in Carroll (supra), in a case in which the party does not know the nature and contents of the material, the situation is plain. It is not open to a party to claim access to the documents merely to see whether they contain something which might be relevant, or might help the party's case. That, in reality, is what the present plaintiffs are seeking to do.
The third, is that as I have already noted, the mere fact that a party may establish relevance is not sufficient in any event. However, the fact that the plaintiffs are not even in a position to do that serves as a clear indicator of just how far removed the plaintiffs find themselves from being able to establish a legitimate forensic purpose.
For these reasons, I am of the view that no legitimate forensic purpose has been demonstrated.
As the parties accepted that this was a threshold question, it is not strictly necessary for me to engage in the next two steps of the process to which I have referred. However, given that the matter was fully argued it is appropriate that I briefly express my views in relation to those matters.
THE CLAIM FOR PUBLIC INTEREST IMMUNITY
As I have previously noted, and on the assumption that a legitimate forensic purpose is established, the second step in the process is that the Commissioner is required to establish the claim for public interest immunity. With the agreement of the parties, I inspected the material over which such a claim is made. That process was in accordance with authority (see Alister v The Queen at 412, 414, 438-439, 456; Air Canada v Secretary of State for Trade [1983] 2 AC 394 at 436, 439; R v Saleam (1989) 16 NSWLR 14 at 18-19; Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667 at 675-676, 681, 690).
Having inspected the material, I am satisfied that the claim has been properly made. Without divulging the nature of the information to which the claim relates, I am satisfied that it falls within one or more of the recognised categories of material which can attract such a claim.
THE BALANCING EXERCISE
Had a legitimate forensic purpose been made out, and having come to the conclusion that the claim was properly made, the third step in the process would have required me to perform the necessary balancing exercise. In doing so, a court is required to consider two competing aspects of public interest, namely whether the administration of justice would be frustrated or impaired if the material was withheld and whether or not harm would be done by the production of the documents.
I am cognisant of those authorities which make it clear that warrants of the kind which give rise to these proceedings authorise, amongst other things, the invasion of interests which the common law has always valued highly, and which it has generally gone to great lengths to protect (see generally George v Rockett [1990] HCA 26; (1990) 170 CLR 104 at 110-111 per the Court).
Having viewed the material over which the claim has been made, and even if the plaintiffs had been successful in establishing a legitimate forensic purpose, I would nevertheless have upheld the claim. In particular, having viewed the material, and bearing in mind the bases of the challenges which are to be made to the validity of the warrants in question, I consider it highly unlikely that any of the material which is the subject of the claim would advance those bases. For this reason, in my view, the public interest in the information being produced is negligible. However there is, in light of the material over which the claim has been made, a compelling public interest in preserving its confidentiality. In my view, the latter consideration greatly outweighs the former in the circumstances of the present case.
SUGGESTED ALTERNATIVES
There is one final issue which, although it does not arise in light of the conclusions I have reached, was the subject of argument. Counsel for the plaintiffs submitted that if I came to the view that a legitimate forensic purpose had been made out but that the balancing exercise favoured the Commissioner, I should nevertheless give consideration to various alternatives which, it was suggested, would both protect the position of each plaintiff, and at the same time preserve the confidentiality of the material. These alternatives included:
(i) ordering partial disclosure;
(ii) delaying the determination of the issue for the trial judge;
(iii) restricting disclosure to the legal advisers of the plaintiffs;
(iv) ordering that the proceedings be held in camera; and
(v) making orders restricting the reporting of the proceedings.
As to the first of those suggested alternatives, it is evident that the documents in question have been redacted to the extent which has been possible bearing in mind the claim which has been made. The production, by the Commissioner, of the material in a partially redacted form effectively constitutes partial disclosure. Having viewed the material it would not, in my view, be open to the Commissioner to make further redactions, whilst at the same time protecting and preserving the confidentiality of the information in question.
As to the second matter, nothing would be gained by delaying the determination of the issue for the trial judge. No submission has been put to me which supports the proposition that the trial judge would be any better placed than I am to make such a determination.
The difficulty with the remaining alternatives proposed by counsel for the plaintiffs is that inherent in each of them is the proposition that the plaintiffs' legal advisers (and perhaps even the plaintiffs themselves) would be made privy to the material over which the claim has been made. There are a number of difficulties with such a course, some of which were referred to by Wilcox J in Hilton v Wells and ors (1985) 59 ALR 281 (at 293):
"Mr Roberts suggested that, if I were not disposed to grant access to the subject material to the parties, I should at least grant access to the legal representatives of the parties. I gave this submission anxious consideration. It was a course apparently considered by the High Court in Alister, although ultimately not adopted. As I have indicated, I would have welcomed the assistance of counsel upon the content of the documents. The applicants would, no doubt, have felt more satisfied that the documents were rigorously examined by the court if their counsel had been given the opportunity to take the court through the documents. But, in the end, I rejected the proposal. It involves a number of problems. Without reflecting in any way upon the integrity of any counsel or solicitor, difficulties are likely to arise where counsel appearing in, and advising their clients in respect of, protracted and complex proceedings acquire information which they are not free to use or to pass on to their clients. During the heat of battle an unwitting disclosure may occur. Frank and full advice becomes impossible. I am aware of cases in which, for reasons such as these, experienced counsel have declined to receive information which they are not free to share with their clients. It seems to me merely common sense to conclude that the fewer people who have access to confidential information the less is the risk of unauthorized disclosure. Weighing the assistance likely to be obtained from counsel's submissions against the sensitivity of the material, it seemed better not to accede to Mr Roberts' suggestion."
Counsel for the Commissioner also drew my attention to the judgment of Kyrou J in R v De Bono [2012] VSC 476 where (at [51]) his Honour made a number of observations regarding the practical difficulties associated with disclosure of confidential information to an accused person. His Honour observed that even if such disclosure were coupled with a strict confidentiality regime, it would pose a serious risk of prejudice to the relevant investigation. In my view, notwithstanding that not all of the present plaintiffs are properly described as accused persons, that general principle is capable of being extended to each of the cases before me.
For these reasons, had the matter reached that point, I would have concluded that none of the alternatives proposed by counsel were appropriate.
ORDERS
In view of the forgoing I make the following orders:
(1) In each of proceedings 2012/271291 (referred to in the judgment as "the Gillard proceedings") and proceedings 2012/271413 (referred to in the judgment as "the Polley proceedings"):
(i) there shall be no access to the documents produced to the court by the second defendant pursuant to the notice to produce first returnable on 19 September 2012, on the basis of public interest immunity;
(ii) the documents referred in order 1(i) shall be placed on the court file and sealed in an envelope marked "not to be opened, save by order of a Judge of this Court";
(iii) the confidential affidavit of Alan John Clarke sworn 20 December 2012 along with confidential exhibits AJC-1 and AJC-2, such documents forming part of exhibit A in the proceedings before me, are returned to the Commissioner herewith.
(2) In proceedings 2012/292276 (referred to in the judgment as "the Ward proceedings"):
(i) there shall be no access to the documents produced to the court by the second and third defendants pursuant to notices to produce first returnable on 2 October 2012, on the basis of public interest immunity;
(ii) the documents referred to in order 2(i) above shall be placed on the court file in an envelope marked "not to be opened save by order of a Judge of this Court;
(iii) the confidential affidavit of Peter Edward Dein sworn 22 November 2012 along with confidential affidavits PED-1 and PED-2, which formed exhibit B in the proceedings before me, are returned to the Commissioner herewith.
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Decision last updated: 15 May 2013
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