R v Abdullah

[1999] NSWCCA 188

CITATION:	R v ABDULLAH & Ors [1999] NSWCCA 188
FILE NUMBER(S):	CCA 60336/99
HEARING DATE(S):	7 July 1999
JUDGMENT DATE:	7 July 1999
PARTIES :	Regina v. Afif ABDULLAH & Ors
JUDGMENT OF:	Spigelman CJ at 31; Grove J at 35; Barr J at 2

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	96/11/0577; 96/11/0578
LOWER COURT JUDICIAL OFFICER:	Patten DCJ

COUNSEL:

L Lungo
(Crown)

GT Johnson
(Applicant, the Commissioner of the Australian Federal Police)

SOLICITORS:

Australian Government Solicitor
(Applicant)

Raheb & Associates
(Respondent Abdullah)

Watsons
(Respondent Hatem)

CATCHWORDS:

Criminal Law - public interest immunity - confidential police informer - test to be applied; Criminal Law - public interest immunity - confidential police informer - claim for immunity refused by order of trial judge - whether order warranted

ACTS CITED:

Criminal Appeal Act s 5F

CASES CITED:

Cain v Glass (No2) (1985) 3 NSWLR at 230
Marks v Beyfus (1890) 25 QBD 494
Duncan & Anor v Cammell Laird and Company Limited [1942] AC 624
Rogers v Home Secretary [1973] AC 388
Sankey v Whitlam (1978) 142 CLR 1
D v National Society for the Prevention of Cruelty to Children [ 1978] AC 171
Attorney General for New South Wales v Stuart (1994) 34 NSWLR 667
Young v Quin (1985) 4 FCR 483
Signorotto v Nicholson [1982] VR 413
R v Stig, Court of Criminal Appeal NSW 17.10.96 unrep
R v Keeling, Court of Criminal Appeal 5.9.96 unrep

DECISION:

Leave to appeal granted; Appeal allowed

IN THE COURT OF
CRIMINAL APPEAL

60336/99

SPIGELMAN CJ
GROVE J
BARR J

Wednesday, 7 July 1999

REGINA v Afif ABDULLAH & Ors

JUDGMENT

1   SPIGELMAN CJ: I would ask Barr J to deliver the first judgment.

2 BARR J: The applicant, the Commissioner of the Australian Federal Police, seeks leave pursuant to s 5F of the Criminal Appeal Act to appeal against an order made in the District Court on 17 June 1999 during the hearing of interlocutory applications by two accused, Afif Abdullah and Ibrahim Hatem, whose trial was about to commence. The solicitor for the applicant, who had been required by subpoena to attend and produce documents, raised a claim of public interest immunity in relation to the documents and the material they contained and in respect of certain other communications and information which it became apparent defence counsel intended to make public by cross-examination of Crown witnesses.

3   The two accused have been made respondents to this application. However, the Court has been informed that a permanent stay of proceedings has been ordered in favour of Hatem. He is therefore not represented today.

4   The respondent Abdullah is represented by Mr Sukkar, solicitor, who, when invited to make submissions, responded that the disposal of the application was a matter for the Court.

5   The Crown also is represented but takes a neutral role and has not been called upon.

6   The two accused were to be tried for the supply of illegal drugs. As often happens during the investigation of such matters, a confidential informer was used. The facts may be summarised as follows.

7   The confidential informer told police officers that a man who has throughout been referred to as “Johnny” was prepared to approach Abdullah to buy heroin. The police spoke to “Johnny”, as a result of which he got in touch with Abdullah and made arrangements to do business with him. Police watched their movements. “Johnny” and Abdullah agreed to meet at a reception centre run by Abdullah. That was on 29 October 1993.

8   “Johnny” went to that place and took purchase money. Abdullah was there and directly or indirectly referred “Johnny” to Hatem, who was in a nearby part of the premises. Hatem supplied the drug. The police closed the net and arrests were made.

9   It appears that a man called Hani Rahme was present but it is not and never was clear, and there was no agreement, that he was a confidential informer.

10   The proceedings before his Honour consisted in part of what is known as a Basha inquiry, in which witnesses which the Crown proposed to call in the case could be cross-examined in the absence of the jury. One such witness was the man “Johnny”. Counsel for Abdullah made clear that he wanted to ask “Johnny” about his relationship with the man called Hani Rahme and asserted that Rahme had been present at relevant times during the investigation or the supply.

11   The Crown Prosecutor asked that Abdullah’s counsel explain and justify the scope of the proposed cross-examination. I will set out in the judgment some extracts from the transcript. Counsel said this:

... it is quite clear from the transcript the other person is the person that introduced Johnny to the police. His capacity thereafter is informant.

12   Later, counsel said:

… the basis of the Basha inquiry goes deeper than that, your Honour, to the extent that the accused wishes to explore with the witness Johnny the relationship as between himself and the other person if indeed the other person is Hani Rahme how he came to be in contact with the other person and to ask some questions about that other person. In the committal proceedings it also emerges as regards Hani Rahme that he - now at one point Agent Mayo says it might not be, it might be another Hani Rahme or some such, although that is a matter for weight I suppose at this stage. My instructions are to explore whether or not Hani Rahme is in fact a convicted drug dealer and just what the circumstances were by which this nexus between Hani Rahme or the other person and Johnny came to exist. Because it would seem to me in my respectful submission that this person who has brought Johnny into the matter not being a regular registered police informant that it would be unfair if Mr Abdullah can’t examine whether or not this other person or this missing link had an axe to grind or had some partiality which would reflect upon the motives for him involving the person Johnny and the relationship between the two of them.

13   Later, counsel said:

This is what juries are called to decide but then in the background, your Honour, there is a possibility which is only a speculative - what if for example Hani Rahme had some motive to get rid of my client? One could imagine various possibilities but the jury would be called to decide in relation to a particular transaction which would be placed before them in the indictment.

14   The solicitor then appearing for the applicant was invited to address the Court and said this:

I have an application to make in relation to the evidence that Johnny might give in connection with this matter and that application is that any evidence that he might give be asked to give that would tend to identify the informer in connection with this matter is the subject of a public interest privilege claim.

15   The solicitor handed to the trial judge a confidential affidavit, about which it is not necessary to say more. This Court has seen the same affidavit. The solicitor made clear - and it may be accepted - that there was no evidence before his Honour and had been none before the Local Court as to the identity of the informer. Any assumptions by either of the accused about the identity of the informer were no more than assumptions.

16   It was asserted by the solicitor for the applicant that counsel for Abdullah was fishing.

17   Although counsel for Hatem made submissions as well, they can be put aside for present purposes in view of the fact that Hatem is no longer an active party to these proceedings.

18   In his submissions counsel for the applicant referred his Honour to the decision of the Court of Appeal of the Supreme Court of New South Wales in Cain v Glass (No 2) (1985) 3 NSWLR at 230.

19   His Honour gave a short judgment as follows:

(Solicitor for Applicant), I am against you on the privilege in relation to the informant. I would not be willing to uphold it. In my view, it would be manifestly unjust to prevent counsel for the accused cross-examining Johnny, whose identity should be preserved, as to his relationship with the informant referred to in the evidence. I reach that conclusion having regard to all that is known to me about this case so far, including the material in the affidavit which was confidentially tendered, that being an affidavit of Mr R R McDonald of the Australian Federal Police.

20   The identity of a police informer has, as a matter of public policy, been protected against disclosure at least since Marks v Beyfus (1890) 25 QBD 494 at 498 and 500. This species of public interest immunity was recognised in many cases, including Duncan & Anor v Cammell Laird and Company Limited [1942] AC 624 at 633 and 634; Rogers v Home Secretary [1973] AC 388 at 401-407; Sankey v Whitlam (1978) 142 CLR 1 at 61; and Cain v Glass (No 2) at 233-234, 242 and 246-247. It covers any material by which a shrewd idea might be conveyed as to the identity of the informer: Rogers v Home Secretary at 401.

21   The rationale is that if the identity of an informer were liable to be disclosed in a court of law, sources of information would dry up and the police would be hindered in their duty of preventing and detecting crime: D v National Society for the Prevention of Cruelty to Children [1978] AC 171 at 218, 232 and 241; Sankey v Whitlam at 65-66; and Cain v Glass (No 2) at 247.

22   There is an exception to the rule, in that disclosure of the identity of the informer will be ordered when required to establish the innocence of an accused person.: Marks v Beyfus at 498 and 500; D v National Society for the Prevention of Cruelty to Children at 218 and 232; Sankey v Whitlam at 42. See also Attorney General for New South Wales v Stuart (1994) 34 NSWLR 667, in the judgment of Hunt CJ at CL beginning at 669, but particularly at 674 and 675.

23   This exception was dealt with in the judgment of McHugh J in Cain v Glass (No 2) at 246 and 247. His Honour referred to the judgment of Lord Diplock in D v National Society for the Prevention of Cruelty to Children at 218:

By the uniform practice of the judges which by the time of Marks v Beyfus 25 QBD 494 had already hardened into a rule of law, the balance has fallen upon the side of non-disclosure except whereupon the trial of a defendant for a criminal offence disclosure of the identity of the informer could help to show that the defendant was innocent of the offence. In that case, and in that case only, the balance falls upon the side of disclosure.

24   Public interest immunity applies as much to proposed oral evidence as well as to the contents of documents: Sankey v Whitlam at 38; Young v Quin (1985) 4 FCR 483 at 485 in the judgment of Bowen CJ; Marks v Beyfus at 491; and Signorotto v Nicholson [1982] VR 413 per Fullagar J at 423 and 424.

25   His Honour was required in conformity with these authorities to enquire as to the factual basis upon which defence counsel justified the proposed examination. It was only if defence counsel could show that the desired evidence could help to show that the defendant was innocent that the claim of public interest immunity could be rejected and the proposed cross-examination permitted.

26   I am unable by reading his Honour’s judgment or by reference to any of the remarks recorded during the debate as it appears in the transcript with which the Court has been furnished to find that his Honour undertook the appropriate inquiry. It does not appear from his Honour’s judgment how it would have been manifestly unjust to prevent counsel for the accused from cross-examining “Johnny” as to his relationship with the informer.

27   Counsel for Abdullah adduced no evidence before his Honour. All the claims, such as they were, were made from the bar table. It seems to me quite clear from what counsel said that there was no legitimate basis upon which to call forth the desired evidence with a confident expectation that it would tend to show the innocence of his client. I refer, for example, to the desire to:

... explore whether or not Hani Rahme is in fact a convicted drug dealer and just what the circumstances were by which this nexus between Hani Rahme or the other person and Johnny came to exist.

28   Another example is the statement that:

It would be unfair if Mr Abdullah cannot examine whether or not this other person or this missing link had an axe to grind.

29   It was for counsel for Abdullah to demonstrate to the Court that he was entitled to cross-examine for the relevant purpose. In my opinion, counsel did not do so. Nothing in what counsel said, even accepting everything at face value, would seem to me to justify a conclusion that any of the desired evidence would tend to prove the innocence of Abdullah. In my opinion, the learned trial judge ought to have upheld the claim for public interest immunity in accordance with the principles I have summarised.

30 I would propose that the applicant have leave to appeal under s 5F of the Criminal Appeal Act and that the appeal be allowed.

31   SPIGELMAN CJ: I agree and would only add this. The Commissioner of the Australian Federal Police has instituted these proceedings in his own name. In Attorney General v Stuart (1994) 34 NSWLR 667 the Attorney General for New South Wales instituted an application, in effect, on behalf of the Commissioner for Police. These proceedings are brought under s 5F of the Criminal Appeal Act 1912. Section 5F(2) gives the Attorney General or the Director of Public Prosecutions standing to bring such an appeal and subs (3) gives such standing by way of leave to any other party to proceedings. Those proceedings are as defined in s 5F(1).

32   The issue has been referred to on a number of occasions in this Court, including in the case of Stig, NSWCCA, 17 October 1996, unreported, where it appears that the same counsel appeared for both the Attorney and the Commissioner. The matter is also referred to in the case of Keeling, unreported, 5 September 1996, particularly in the judgment of Cole JA at 19-20.

33   No point was taken with respect to this matter in the present proceedings, so it is not necessary to decide the precise standing of the Commissioner suing in his own name.

34   I agree with the orders proposed by Barr J.

35   GROVE J: I agree with the judgment delivered by Barr J.

36   SPIGELMAN CJ: The orders of the Court are as indicated by Barr J.

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