R v Atashi; R v Katakouzinos

[2021] NSWDC 91

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Atashi; R v Katakouzinos [2021] NSWDC 91

Hearing dates:

2 October 2020

Date of orders:

26 March 2021

Decision date:

26 March 2021

Jurisdiction:

Criminal

Before:

Sutherland SC DCJ

Decision:

See paragraph 79

Catchwords:

CRIME – Interlocutory order – Application to set aside subpoena – legitimate forensic purpose – Public interest immunity – Credibility of critical Crown witness

Legislation Cited:

Courts Suppression and Non-publication Orders Act 2010

Director of Public Prosecutions Act 1986

Evidence Act 1995(NSW)

Cases Cited:

Alister v The Queen [1984] HCA 85; [1983 – 1984] 154 CLR 404

Attorney-General (NSW) v Chidgey (2008) 182 A Crim R 536

Darwiche v R [2011] NSWCCA 62

Darwiche v R; El-Zeyat v R; Aouad v R; Osman v R [2011] NSWCCA 62

Jarvie v Magistrates’ Court of Victoria [1995] VicRp 5; [1995] 1 VR 84

R v Fisher (2003) 56 NSWLR 625

R v Hawi (No 2) [2011] NSWSC 1648

R v Hughes [1986] NZCA 56; [1986] 2 NZLR 129

R v Saleam [1999] NSWCCA 86

R v Saleam (1989) 16 NSWLR 14

Category:

Procedural rulings

Parties:

Regina (Crown)
Kuroush Atashi (Defendant)
Zak Katakouzinos (Co-defendant)
NSW Commissioner of Police

Representation:

Counsel:
M. Pickin (Atashi)
P. David (Katakouzinos)
L. Chapman (Commissioner of Police)

Solicitors:
Zahr Partners (Atashi)
Katsoolis & Co (Katakouzinos)
Crown Solicitor’s Office (NSW) (Commissioner of Police)
Office of Director of Public Prosecutions (NSW) (Crown)

File Number(s):

2018/00137126; 2018/00137224

Publication restriction:

Interim non-publication order of the name of the Crown witness referred to as ‘CW’

Index

INTRODUCTION - [1]

FACTUAL BACKGROUND - [4]

HISTORY OF PROCEEDINGS - [23]

THE PRESENT APPLICATION - [32]

LEGITIMATE FORENSIC PURPOSE - [45]

PUBLIC INTEREST IMMUNITY - [48]

“ON THE CARDS” - [54]

CONSIDERATION - [63]

ORDERS - [79]

Judgment on Notice of Motion

INTRODUCTION

1. This is an application brought by the NSW Commissioner of Police pursuant to a Notice of Motion dated 25 September 2020. The application seeks the setting aside of identified paragraphs in a subpoena for production which has been issued on behalf of the accused, Kuroush Atashi, in advance of an upcoming trial. The application is supported by his co-accused Zak Katakouzinos.

2. The application seeks, as an alternative to the setting aside of the identified paragraphs, that the Commissioner of Police be excused from production of material relating to various paragraphs on the grounds of public interest immunity. The application also seeks that the Commissioner be excused from producing an un-redacted version of a document which has already been produced with respect to a particular paragraph in the subpoena.

3. Before turning to the detail of the application, I confirm that I have previously made an order, on an interim basis, pursuant to the provisions of section 7 and section 10 of the Courts Suppression and Non-publication Orders Act 2010 that there be no publication of the name of the Crown witness to whom reference will be made in this judgment and who provided a statement to police dated 18 April 2018. That order continues until further order of this court, or of a superior court. He will be referred to in the course of this judgment as CW.

FACTUAL BACKGROUND

4. The background to the present application relates to the credibility of CW in the upcoming trial. The relevant factual circumstances of the trial itself derive from acts of alleged intimidation and arson at premises in Crestwood Drive, Baulkham Hills on 15 November 2017.

5. An understanding of the Crown case in these proceedings is limited by the circumstance that the only factual material which has been tendered is a police Facts Sheet relating to the accused Atashi. There is, however, reference to additional factual material in the written submissions furnished on this application as well as a Crown Case Statement on the court file which I have perused.

6. Atashi and his co-accused, Zak Katakouzinos, were members of the North-West Chapter of the Finks outlaw motorcycle gang. I do not for present purposes draw any distinction between associate members, nominees, or fully-patched members. The Finks are described as a well-known gang said to be involved in violent assaults and extortions, among other activities.

7. The Crown case is that Atashi and his co-accused Katakouzinos were driven by the witness CW, who was also a member of the Finks, to premises at Crestwood Drive, Baulkham Hills. Those premises were the home of a man, Dominic Green, who was believed to be involved in the distribution and dealing of drugs. The clear implication on the material before me is that Green had been operating as a drug dealer in the area without the “approval” of the Finks outlaw motorcycle gang who purported to control, or wanted to control, such activities in the region.

8. The Crown case is that after arriving at the premises late at night, Atashi and Katakouzinos proceeded to call out to Green in an effort to get him to come out of the house. It would appear that Green was in fact not at his home at the time. His mother was asleep inside the house. When no one emerged from the home Atashi and Katakouzinos proceeded to set fire to two motor vehicles which were parked at the premises. The vehicles, one of which belonged to Dominic Green’s mother and the second to his brother, were totally destroyed.

9. The case against both accused rests upon evidence which is expected to be given by CW. The detail of his evidence was obtained by police in an induced statement which cannot be used to prosecute him.

10. According to the account of CW, he met up with a number of other members of the Finks on the evening of 15 November 2017. CW asserts that he was asked to drive Atashi and Katakouzinos to where Dominic Green lived where it was intended that Green would be “hit up” for selling drugs in the area. If Green would not come outside his premises, Atashi said they would set his cars on fire.

11. According to CW, Atashi said that they had been told to go to Green’s house for the purpose by Harrison (“Harry”) Clark. Clark, according to the Crown case, was the Vice-President of the Finks at the time.

12. CW’s evidence will be that he drove the two co-accused, pursuant to directions given to him by Atashi, to the vicinity of Green’s residence. CW then describes the attempted intimidation at the house and his observations of petrol being poured over both motor vehicles before the trail of petrol being lit. It is anticipated that he will also give evidence about the three men, namely himself, Atashi and Katakouzinos running back to their car before CW drove them back to other premises.

13. It is sufficient to observe from this summary overview that the anticipated evidence from CW is critical to the Crown case proposed to be led at trial. The credibility of such a crucial witness is likely to be fundamental to the issues at trial.

14. The following month, in the early hours of 18 December 2017, the witness CW, who was a patched member of the Finks, was violently assaulted by the accused Atashi and another member of the Finks, Harrison (“Harry”) Clark. Some hours later CW was pulled over by police whilst driving a motor vehicle at Rouse Hill. He was suffering obvious and quite severe injuries following the assault. He was conveyed to Westmead Hospital where he was treated for serious injuries. Police officers attended the hospital and were provided with what is described as a knowingly false explanation by CW as to how he had sustained his injuries.

15. According to the written submissions on behalf of Atashi in the present proceedings, police again spoke with CW on 19 December 2017. He refused to assist police at that time.

16. He was ultimately released from hospital after approximately 11 days on 29 December 2017.

17. CW was again spoken to by police on 11 January 2018. He again provided what is described as a knowingly false version of events in which he alleged that unknown Arab males in Bankstown had been his assailants.

18. On 10 and 11 February 2018 CW provided a detailed statement to detectives with respect to the assault upon him on 18 December 2017. That statement, contrary to his earlier false statements, implicated Atashi and Harry Clark in the violent assault.

19. I am informed that both Atashi and Clark have been charged and subsequently sentenced with respect to that assault.

20. On 18 April 2018 CW provided a further statement to police in which he implicated the accused Atashi and Katakousinos in the arson of the two motor vehicles. He also is said to have identified Harrison Clark as having given directions to the others to effect the intimidation and arson at Green’s premises. As indicated earlier, this statement was induced on the basis that the evidence contained in it would not be used in proceedings against CW himself.

21. The circumstances in which CW was offered the opportunity to make admissions and to bring allegations against others in an induced statement and the decision that he not be prosecuted with respect to his own apparent criminal participation in the offences, are clearly relevant matters for appropriate disclosure by the prosecution. They are issues which are manifestly relevant to an assessment of his credibility.

22. It is against all of these circumstances that the defence have issued a subpoena seeking material from the police touching, in broad terms, upon the question of the relationship between the witness CW and police.

HISTORY OF PROCEEDINGS

23. Before turning to the specific Schedule in the current subpoena, it is appropriate to briefly review the history of the proceedings and the delay in the matter coming to trial.

24. Following the obtaining of the induced statement from CW on 18 April 2018, both Atashi and Katakouzinos were arrested on 1 May 2018. On 21 June 2019, both accused were committed for trial to the District Court at Parramatta. The matter was first mentioned in the District Court on 18 July 2019. On 8 August 2019 the accused were arraigned and entered pleas of not guilty. The trial was fixed for hearing on 27 July 2020 with an estimate of 10 days.

25. In June and July 2020, the matter was mentioned on numerous occasions in the course of detailed case management. During that time a number of relevant applications were brought. These included a Notice of Motion on behalf of the prosecution for a number of identified witnesses, including CW, to be able to give their evidence by audio–visual link. Relevant factors included Covid–19 restrictions which, at that time, would have required witnesses coming from interstate to undertake extended periods of quarantine upon entry to New South Wales.

26. Of passing note is that an open affidavit from a solicitor from the Office of the Director of Public Prosecutions which was served on the defence and tendered on the application in July 2020, names the witness CW in respect of whom I was asked to make an interim order suppressing publication of his name. That affidavit also sets out a statement that the “informer witness in this matter [CW], had relocated interstate for his safety.”

27. Also during that period in July 2020, an earlier subpoena was issued on behalf of the accused Atashi seeking various of the documents in respect of which production is now sought in the current and more recent subpoena. It was in response to items 2, 3 and 4 of that earlier subpoena that a redacted copy of a financial statement setting out the details of the types of monetary payments from the NSW Police to the Crown witness CW, without disclosing the individual amounts, was produced. Three of the descriptive types or categories of payments were redacted in whole or in part, and the whole of the detail of the individual payments was similarly redacted. The total of payments which had been approved, $33,211, and the amount which had in fact been paid, namely $29,986.61, was disclosed in the document produced by the Commissioner of NSW Police. That document, already produced, is the subject of paragraph (g) in the subpoena currently under consideration.

28. The return date for that original subpoena was on the first day that the matter was listed for trial, 27 July 2020. Following the partial return, namely the production of the redacted document regarding payments, the balance of the return of subpoena was stood over to 31 July 2020. On that day a Notice of Motion was filed together with open and confidential affidavits tendered on behalf of the NSW Commissioner of Police. The motion was adjourned until 3 August 2020 on which occasion the Crown applied to vacate the trial date. This application was not opposed by the accused and the trial in 2020 was accordingly vacated. On 4 August 2020 the matter was again mentioned. The original subpoena was not pressed and was withdrawn. The Court was advised that a differently drafted subpoena would be served at a later date.

29. On 7 August 2020 a new trial date was fixed for 21 June 2021. The matter was listed for the return of the fresh and still anticipated subpoena on 18 September 2020.

30. On 10 August 2020 the current subpoena was issued. The Notice of Motion seeking to set aside various paragraphs and to raise questions of public interest immunity was filed on 25 September 2020.

31. In due course, that motion came before me for hearing on 2 October 2020. The matter was reserved and the Court was advised that the trial date in June 2021 was, by consent, going to be adjourned until later in the year. On 9 October 2020 the trial date fixed for 21 June 2021 was vacated and the trial was relisted for hearing on 5 October 2021.

THE PRESENT APPLICATION

32. I return now to a consideration of the present application.

33. The Schedule to the current subpoena seeks production from the NSW Police of the following documents relating to the witness CW for the period between 1 September 2017 and 10 August 2020:

1. All “contact activity reports”, “Contact Advice reports” held on the system known as the Source System; wherein he is the source;

2. All records of conversation; handwritten notes, audio, digital and entry data and COP type entries prepared evincing direct dealings/interviews (formal and informal) between NSW Police or its agents and the witness [CW] (for the aforesaid dates);

3. All statements, drafts and précis of NSW Police witness statements of [CW] – for the period 18 December 2017 and 10 August 2020;

4. All documents evidencing any formal or informal undertaking, agreement, indemnity or inducement made by/or in relation to [CW] and NSW Police, including (but not limited to) the “promise held out to” [CW] by DS Wallace of NSW Police (see statements of CW which cite (without date or place/condition) such a promise being made by that officer to [CW];

5. All correspondence, letters and emails between [CW] (or his legal representatives) and NSW Police during the aforesaid period;

6. Any and all letters of comfort or letters of assistance proffered by NSW Police to [CW];

7. Particulars of any and all financial/monetary sum offered (by NSW Police), sought (by [CW]), promised (by NSW Police) or paid (to [CW]) during the period 1 September 2017 and 10 August 2020; and

8. All “facts sheets” prepared and held by police in relation to charges laid against [CW] as follows: H54437088 / H10098502 / H64866330.

34. As I have already discussed, on 25 September 2020 the Crown Solicitor for NSW, on behalf of the Commissioner of Police, filed a Notice of Motion seeking orders setting aside paragraphs (a), (b), (c), (e) and (h) of the Schedule to the subpoena as an abuse of process. In the alternative, and without confirming the existence or otherwise of the material sought, the Commissioner sought to be excused from producing any material with respect to those identified paragraphs on the grounds of public interest immunity.

35. The Notice of Motion further sought that the Commissioner be excused from producing any un-redacted version of the document which had previously been produced with redactions in response to paragraph (g) of the Schedule.

36. In due course the motion also sought the interim orders suppressing the name of the Crown witness to which I have earlier made reference and which orders remain in place.

37. In support of the Notice of Motion, an open affidavit dated 24 September 2020 sworn by Assistant Commissioner Talbot was tendered. That open affidavit sought to not be required to respond to (a) in the Schedule to the subpoena. That paragraph effectively sought all contact reports held within the Source System between police and CW. It presumes that he is in fact a registered source. The affidavit of Assistant Commissioner Talbot seeks to invoke principles of public interest immunity so as to neither confirm nor deny that the individual is presently, or has been, a confidential source.

38. The open affidavit indicates that a redacted financial statement in response to paragraph (g) had already been produced. As I have described earlier, the document was produced in a redacted form setting out the categories of payment but only the total sums involved, not the individual amounts relating to the separate categories. The redacted information containing such details is sought to not be produced pursuant to a claim for public interest immunity.

39. Paragraphs (b) and (e) of the Schedule are sought to be set aside on the basis that complying with production of the documents covered by those paragraphs is oppressive as necessitating a disproportionate and unreasonable impost on police time and resources. The paragraphs are said to constitute an abuse of process

40. With respect to paragraphs (d) and (f), the Commissioner indicates that there are no materials to produce in answer to those paragraphs.

41. With respect to the Fact sheets sought in paragraph (h), charge H10098502 is said to not relate to the witness CW, nor to any relevant matter before the court.

42. The matters of public interest immunity referred to are further supported by a confidential affidavit, similarly sworn 24 September 2020 by the Assistant Commissioner.

43. The orders sought by the Commissioner in the Notice of Motion are opposed by the accused. In written submissions on behalf of the accused the factual background to the allegations made by CW is set out. Some of the matters raised, such as a suggestion that the president of the Finks and CW had both come over from the Hells Angels and that the president of the Finks, together with CW, might have organised the arson without involving the accused, are matters which are irrelevant to the present application. They may well be relevant in the trial itself. To similar effect is the suggestion in those submissions that CW may have falsely accused Atashi and also implicated Clark because of animus held by him as a consequence of the brutal assault that he sustained at their hands on 18 December.

44. The defence submission, to the effect that CW’s statements to police in April 2018 in which he implicated the accused in the commission of the intimidation and arson “are of paramount significance in this trial” is, in my view, an accurate, albeit brief, description of evidence which is fundamental to the prosecution.

LEGITIMATE FORENSIC PURPOSE

45. A letter from the solicitors for the accused to the Crown Solicitor, setting out what was said to be the legitimate forensic purpose in seeking the various classes of documents set out in the Schedule to the subpoena, was also provided to the court. That letter, dated 21 July 2020, was originally intended to support the earlier subpoena issued in July 2020. It is relied upon in the present proceedings for the same purpose.

46. The letter from the defence solicitors identified the legitimate forensic purpose as follows:

“… the only evidence implicating our client in this alleged matter is the evidence of the witness, [CW], also criminally involved in the offence, and an informer witness who was given immunity from prosecution. The credibility of this witness is sorely in issue and the matter will rise and fall on his evidence. There is a vacuum of evidence in the brief, much less disclosure and service of records as to when [CW] met police, the assurances he was given, and precisely what he was asked/told/promised, and the manner in which his version to police evolved. It is important to note that the Crown is also likely to support disclosure of this material.

The extent of the assistance promised and delivered to the informant and the nature and circumstances surrounding the giving of that assistance, is plainly relevant and on the cards. Such material provides, and experience has shown, is consistently proven to provide both a motive to lie and/or fabricate evidence to gain an advantage, and served to inform the accused of the contextual matrix surrounding the giving of the informer’s evidence.” (sic)

47. Without setting out the detail of further submissions regarding a legitimate forensic purpose set out in that correspondence, I am satisfied that the categories of document sought pursuant to the subpoena do have a legitimate forensic purpose – see Attorney-General (NSW) v Chidgey (2008) 182 A Crim R 536.

PUBLIC INTEREST IMMUNITY

48. However, whether such documents should be produced, and whether access should be granted to them, raises different considerations.

49. The background circumstances clearly indicate that the critical Crown witness was a member of an outlaw motorcycle gang and had previous criminal convictions. By his own account he was at least an accomplice in the commission of the criminal offending the subject of the trial against the accused. He was subsequently the victim of a violent assault at the hand of other gang members. He initially refused to cooperate with police regarding the perpetrators of that assault.

50. The known facts indicate that by February 2018 he was cooperating with police in providing a truthful account of who had assaulted him. One of those was the present accused. Whether that was an induced statement or not, the Court is unaware. As I noted earlier however, the identified perpetrators of the assault have been convicted and sentenced. In April 2018 the witness, described in the earlier affidavit filed by the solicitor from the DPP as an “informer witness”, provided the induced statement which led to the charges and proposed trial against the accused.

51. As observed by Johnson J in Darwiche v R [2011] NSWCCA 62 at [177]:

“It has become part of the contemporary landscape of trials for very serious crimes that persons may give prosecution evidence whilst holding an indemnity and being the recipients of assistance and witness protection. In Rozenes v Beljajev, Brooking, McDonald and Hansen JJ observed at 544 that "if it were not for the evidence of accomplices, a great deal of very serious crime would go unpunished, and the frequent use of evidence of accomplices has been found to be necessary in the public interest.’ ”

52. The previously disclosed material reveals that an amount of almost $30,000 has been paid by NSW police to the “informer witness” either directly, or indirectly in respect of expenses such as accommodation. It has also been previously disclosed that the witness has “relocated” interstate.

53. The written submissions by Mr Pickin, counsel for the accused, assert a number of other facts said to be known about the witness. These include that before the alleged incidents, and presumably before the assault carried out by other gang members, CW had been spoken to by NSW police. It is also asserted that a firearms prevention order had been served on CW prior to the relevant events giving rise to the trial.

“ON THE CARDS”

54. Before turning to the detail of the documents which are nominated in the Schedule, I should indicate that I am satisfied that it is “on the cards” that documents of the various categories sought are likely to exist and would likely materially assist the defence case with respect to the credibility of the critical Crown witness – see R v Saleam (1989) 16 NSWLR 14 per Hunt J; R v Saleam [1999] NSWCCA 86 per Simpson J).

55. Of course, the concept of something being “on the cards” had been introduced by Gibbs CJ in Alister v The Queen [1984] HCA 85; [1983 – 1984] 154 CLR 404, where his Honour the Chief Justice said (at [7]; at p.414):

“Although a mere "fishing" expedition can never be allowed, it may be enough that it appears to be "on the cards" that the documents will materially assist the defence. If, for example, it were known that an important witness for the Crown had given a report on the case to ASIO it would not be right to refuse disclosure simply because there were no grounds for thinking that the report could assist the accused. To refuse discovery only for that reason would leave the accused with a legitimate sense of grievance, since he would not be able to test the evidence of the witness by comparing it with the report, and would be likely to give rise to the reproach that justice had not been seen to be done.”

56. A number of key principles need to be considered. The statutory provisions derived from the common-law principles with regard to public interest immunity are relevantly set out in section 130 of the Evidence Act 1995(NSW):

(1) If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence.

(2) The court may give such a direction either on its own initiative or on the application of any person (whether or not the person is a party).

(3) In deciding whether to give such a direction, the court may inform itself in any way it thinks fit.

(4) Without limiting the circumstances in which information or a document may be taken for the purposes of subsection (1) to relate to matters of state, the information or document is taken for the purposes of that subsection to relate to matters of state if adducing it as evidence would--

(a) prejudice the security, defence or international relations of Australia, or

(b) damage relations between the Commonwealth and a State or between 2 or more States, or

(c) prejudice the prevention, investigation or prosecution of an offence, or

(d) prejudice the prevention or investigation of, or the conduct of proceedings for recovery of civil penalties brought with respect to, other contraventions of the law, or

(e) disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State, or

(f) prejudice the proper functioning of the government of the Commonwealth or a State.

(5) Without limiting the matters that the court may take into account for the purposes of subsection (1), it is to take into account the following matters--

(a) the importance of the information or the document in the proceeding,

(b) if the proceeding is a criminal proceeding--whether the party seeking to adduce evidence of the information or document is a defendant or the prosecutor,

(c) the nature of the offence, cause of action or defence to which the information or document relates, and the nature of the subject matter of the proceeding,

(d) the likely effect of adducing evidence of the information or document, and the means available to limit its publication,

(e) whether the substance of the information or document has already been published,

(f) if the proceeding is a criminal proceeding and the party seeking to adduce evidence of the information or document is a defendant--whether the direction is to be made subject to the condition that the prosecution be stayed.

57. Other considerations, which on occasion require a further balancing exercise between competing principles, include the duties of disclosure of a prosecutor (DPP Guideline 18); the obligation of investigating police to provide information to the prosecutor (Director of Public Prosecutions Act 1986 s. 15A); and in some instances the indivisibility of the Crown when the interests of justice require disclosure (see remarks of Simpson J at [19] in R v Fisher (2003) 56 NSWLR 625 at 629; also DPP Guidelines 16 and 18)

58. Some matters which have been long recognised as necessitating non-disclosure on the basis of public interest immunity, such as the anonymity of informers, may require different consideration in circumstances where an informer is called to give evidence in court. The distinction between whether a person was an informer or a witness was adverted to by RA Hulme J in R v Hawi (No 2) [2011] NSWSC 1648 at [89].

59. The public interest in the ability of an accused to elicit or establish facts, including those going to credit, as may assist in securing a favourable outcome to the proceedings, is well-established and may be considered fundamental. However, public interest immunity, which may give rise to particular considerations including the safety of an informer and/or his or her family, and which may also give rise to public policy considerations of a wider significance, such as the willingness of future informants to cooperate with police, gives rise to the “balancing exercise” which the court is required to undertake – see the observations of Brooking J in Jarvie v Magistrates’ Court of Victoria [1995] VicRp 5; [1995] 1 VR 84.

60. In Hawi (No 2) questions regarding the calling of civilian witnesses using pseudonyms were at the core of the application. The right of the defence to ascertain the true identity of an accuser where questions of credibility may be an issue was described as “basic to any civilised notion of a fair trial” by Richardson J in the New Zealand Court of Appeal in R v Hughes [1986] NZCA 56; [1986] 2 NZLR 129.

61. Although not necessary to be determined by me with regard to the present application, I am constrained to observe that although strictly a matter for the trial judge, questions with respect to any change of appearance or any other aspect of identification of the Crown witness and/or his current address, perhaps amongst other matters, would not appear to me to be relevant to a proper defence of the accused in the trial. The safety of the witness in these respects would appear to me to be paramount.

62. I turn to a specific consideration of the different categories identified in the Schedule to the subpoena.

CONSIDERATION

63. Paragraph (a) seeks the production of material which would only exist if CW had been recorded as a registered source, namely reports held on the system described as the Source System.

64. Paragraph (b) seeks the production of all records and entries relating to direct dealings/interviews between NSW police and the witness CW between 1 September 2017 and 10 August 2020.

65. Paragraph (e) seeks the production of all correspondence, letters and emails between CW or his legal representatives and police during the same period.

66. It is convenient to deal with these three paragraphs together. Dealt with in such a way it neither confirms nor denies the existence of material sought in paragraph (a). The Commissioner seeks that each of these three paragraphs be struck out as impermissible and oppressive. I am not of the view that the material sought to be obtained is an abuse of process and hence impermissible.

67. Although said to be oppressive and imposing an unreasonable and disproportionate impost on police to be required to undertake the necessary searches to comply with such a wide call, there has in fact been produced and annexed to the confidential affidavit a number of records which, prima facie, fall within the categories of documents which are called for with respect to one or more of these paragraphs. Notwithstanding that it is said to be not able to be confirmed that what has been produced constitutes everything that might fall within the ambit of the description in the Schedule, I proceed on the basis that what has been produced to the Court is substantial compliance with the call.

68. I have given careful consideration to the balancing exercise required with respect to the matters of policy which are referred to in the confidential affidavit. Questions touching upon the reliability and credibility of CW at the trial will undoubtedly, and in my view relevantly, raise issues as to when and why he provided the incriminating statements to police. Relevant factors may well include whether CW was facing any charge or charges at the time and whether or not any charge or charges were discontinued. The nature of any inducement offered to him, including cash payments or promises of reward, would also fall within such relevant factors. It is to be observed that in cases such as Darwiche v R; El-Zeyat v R; Aouad v R; Osman v R [2011] NSWCCA 62 the full details of such payments and the relevant status of such witnesses was disclosed.

69. The confidential affidavit contains annexures including 23 pages relevantly paginated 13 – 36. I uphold the claim for public interest immunity with regard to some parts of these entries. Other portions of the entries, in my opinion, are legitimately sought to be produced by the defence. They are relevant, in my view, to the issues of credibility regarding CW which have been identified.

70. However, some of the entries require redaction for reasons which go to the safety of the witness and, in some instances, to more generalised police methodology, the protection of which is not outweighed by the necessity of ensuring that the accused has relevant material touching on the issue of credibility.

71. I have, in these circumstances, reproduced copies of pages 13 – 36, being the relevant annexures to the confidential affidavit, with what I consider to be the appropriate redactions or a clear indication of what should be redacted. Some of the material redacted goes to matters which might be utilised inappropriately to pursue individual features regarding CW or persons with whom he is, or has been, closely associated. The redacted document will be provided to the representative of the NSW Commissioner of Police. There is to be no production of the documents in an appropriately redacted form to the representatives of the accused (or either of them) for a period of 28 days from today’s date, pending any further or different order from a superior Court.

72. I express the preliminary view that the documents in their redacted form should be provided to the prosecuting authority pursuant to s 15A of the Director of Public Prosecutions Act 1986.

73. Paragraph (c) of the Schedule seeks witness statements of CW during the identified period. I infer that the relevant statement of 18 April 2018 regarding the present proposed trial has been served as part of the prosecution brief. With respect to any other statements relating to matters other than the present trial, I am not satisfied that any legitimate forensic purpose has been established nor am I of the view that it is “on the cards” that any such statement would materially assist the defence. I would accordingly set aside that particular paragraph.

74. If I am wrong in that conclusion regarding paragraph (c) I would uphold a claim of public interest immunity on any such statement provided by CW with respect to matters outside the ambit of issues in the present trial.

75. Paragraph (d) seeks all documents relating to an alleged “promise held out” by a nominated police officer to CW. The open affidavit deposes that searches have been conducted and the Commissioner has no materials to produce in answer to that paragraph.

76. Paragraph (f) calls for any letters of comfort or assistance provided by NSW Police to CW. The open affidavit again indicates that there are no materials to produce.

77. Paragraph (g) seeks the production of the redacted portions of the financial document previously produced and to which I have earlier made detailed reference. The document in its redacted form identified various categories of payments including references to interim interstate accommodation; the provision of household furnishings, appliances and utensils; motor vehicle purchase; name change application and costs to do with the issue of a new licence. The detail of the redacted actual amounts, as opposed to the lump sum total, would appear to me to have little relevance to issues of credibility and may have the potential to assist inappropriate enquiry as to the present location of the witness. Save as to the references to specific cash payments which are included in the material that I have identified above in pages 13 – 36 of the confidential affidavit, I uphold the claim for public interest immunity with respect to the redacted portions of the financial statement already produced.

78. The last paragraph in the Schedule (paragraph (h)) has, subject to the incorrect identification of one fact sheet, been complied with.

ORDERS

79. The formal orders of the Court are accordingly:

1. With respect to paragraphs (a), (b) and (e) of the Schedule to the subpoena, I uphold the claim for public interest immunity in part. With regard to the unredacted portions of the document returned by the Court to the representative of the NSW Commissioner of Police, I decline to either set aside the subpoena or to direct non-production on the basis of public interest immunity. The requirement for production of an appropriately redacted document will be stayed for 28 days from today’s date.

2. I set aside paragraph (c) of the Schedule.

3. I note that with respect to paragraphs (d) and (f) of the Schedule, nothing is produced.

4. I uphold the claim for public interest immunity with respect to the unredacted portions of paragraph (g).

5. I note that the amended call in paragraph (h) has been complied with.

6. These orders will be stayed for 28 days from today’s date, 26 March 2021.

Amendments

29 March 2021 - Cases cited updated

Decision last updated: 29 March 2021