R v Benbrika & Ors (Ruling no 3)
[2007] VSC 283
•8 August 2007
| IN THE SUPREME COURT OF VICTORIA | Not restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1544 of 2006
| THE QUEEN |
| v |
| ABDUL NACER BENBRIKA, IZZYDEEN ATIK, AMER HADDARA, AIMEN JOUD, SHANE KENT, ABDULLAH MERHI, AHMED RAAD, EZZIT RAAD, FADAL SAYADI, HANY TAHA, SHOUE HAMMOUD, MAJED RAAD and BASSAM RAAD |
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JUDGE: | BONGIORNO J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 July 2007 | |
DATE OF RULING: | 8 August 2007 and 20 June 2008 | |
CASE MAY BE CITED AS: | R v Benbrika (Ruling No. 3) | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 283 | Revised 18 September 2008 |
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PRACTICE AND PROCEDURE – Subpoena – Public interest immunity – Confidential affidavit and submissions – Legitimate forensic purpose – Premature to rule as to immunity – Ruling deferred pending elucidation of defence case.
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APPEARANCES: | Counsel | Solicitors |
| For the Chief Commissioner | Mr B Dennis | Victorian Government Solicitor’s Office |
| For the Accused Haddara, Kent, Merhi, A. Raad, E. Raad, B. Raad, M. Raad, Sayadi and Taha | Mr J McMahon with Ms N Karapanagiotidis | Robert Stary and Associates |
HIS HONOUR:
This application is concerned with the inspection by some of the accused in this proceeding of a document in the possession of the Chief Commissioner of the Victoria Police. The Chief Commissioner objected to such inspection on the ground that the document is the subject of public interest immunity. She submitted that it would be detrimental to the public interest for this document to be disclosed to the parties to this proceeding and, in any event, none of them had identified a legitimate forensic purpose in seeking the document so as to entitle them to inspection.
This criminal proceeding is in its interlocutory stages. A date has been fixed for the trial of the case before a jury on 4 February 2008, but before then there are still a number of preliminary matters to be disposed of after argument of which this application for inspection of a subpoenaed document is one.
The Document
On 1 June 2007 the prosecutor, the Federal Director of Public Prosecutions, wrote to the solicitors acting for a number of the accused in the following terms:
As part of the Crown’s continuing disclosure obligation, please find enclosed an unsigned draft statement drawn by police in the name of Mr Jihad Bekai. Please note that as matters presently stand, the Crown does not intend to call Mr Bekai to give evidence at the forthcoming trial.
The Crown has also had access to a taped interview conducted with another person. I am instructed by Victoria police that this interview is the subject of a claim for public interest immunity. Accordingly I am not in a position to provide you with a copy of this interview.
It is the document referred to in the second paragraph of this letter to which this application relates.
The Chief Commissioner objected to the inspection of the document described as the “taped interview” by any of the accused because, she says, it would be detrimental to the public interest if its contents, including the identity of the person interviewed, became public. In any event, she argued, the applicants for inspection have not demonstrated any legitimate forensic purpose for the subpoena to which she has responded. Unless they can do so the issue of public interest immunity from disclosure of the document does not even arise argued the Chief Commissioner.
No objection was taken by the Chief Commissioner to the subpoena itself and although the actual document subpoenaed (ie the recording) was not produced to the Court a typed transcript of it was produced and was also exhibited to an affidavit sought to be relied upon by the Chief Commissioner in support of her argument. In the circumstances, whether her objections to inspection are decided by reference to the first or the second stage of the procedure described by Moffitt P in Waind and Hill v National Employers Mutual General Insurance Association Ltdl[1] matters little. Even if the subpoenaed document is not formally within the control of the Court, its contents are before the Court at the invitation of the subpoenaed party and can be examined in light of the arguments addressed. Thus, in the circumstances, there is no need to consider the propriety of the Court’s inspecting the subpoenaed material; it has done so at the specific request of the subpoenaed party without objection from the parties who issued the subpoena.
[1][1978] 1 NSWLR 372 at 381.
Legitimate Forensic Purpose
Mr Dennis of counsel for the Chief Commissioner submitted that the parties seeking inspection of the subject document could not establish a legitimate forensic purpose so as to entitle them to such inspection. He referred to R v Saleam,[2] Tastan,[3] and A-G (NSW) v Stuart.[4] Thus, he argued, no question of balancing the public interest against the rights of the accused even arises here and inspection should be denied.
[2](1989) 16 NSWLR 14.
[3](1994) 75 A Crim R 498.
[4](1994) 34 NSWLR 667 at 681.
The accused have described their legitimate forensic purpose by reference to the provenance of the document of which inspection is sought and by reference to the way in which its existence was disclosed to them, that is to say in the course of the Crown’s discharge of its duty of disclosure.
The prosecutor’s so-called duty of disclosure, whilst being a duty owed to the Court and not one enforceable at the instance of the accused, is a duty which arises out of the Crown’s obligation to conduct a criminal trial with fairness. In Cannon v Tahche[5] the Court of Appeal (Winneke P, Charles and Chernov JJA) described the duty as a:
… discretionary responsibility exercisable according to the circumstances as the prosecutor perceives them to be. The responsibility is, thus, dependent for its content upon what the prosecutor perceives, in the light of the facts known to him or her, that fairness in the trial process requires.
[5](2002) 5 VR 317.
There is no doubt that it is the responsibility of the prosecutor to ensure that the Crown case is conducted with fairness.[6] In R v TSR, Chernov JA referred to an unreported decision of the Court of Criminal Appeal, R v Higgins[7] which he cited as authority for the proposition that the Crown has an obligation to disclose to the defence material which would tend to assist the defence case. He noted that in Higgins the Court of Criminal Appeal had also referred to R v Charlton,[8] Lawless v R[9] and Clarkson v DPP.[10] In the last of those cases Murphy J spoke of the prosecutor’s duty of fairness where there is a question of disclosing to the defence documentary material in his possession or power which would “tend to assist the defence case”. Chernov JA quoted from Murphy J’s judgment in these terms:[11]
Whilst it would, generally speaking, be quite unfair for a prosecutor not voluntarily to produce to the accused material relevant to the trial and going to exculpate him, there is no rule which enables the accused to seek at the outset indiscriminately to see the relevant papers within the possession or control or power of the prosecution.
[6]Richardson v R (1974) 131 CLR 116, 119 (Barwick CJ, McTiernan and Mason JJ); R v TSR (2002) 5 VR 627, 650 (Chernov JA).
[7]Unreported, 2 March 1994.
[8][1972] VR 758.
[9](1979) 142 CLR 659, 666-7 (Barwick CJ), 673-4 (Stephen J), 678 (Mason J).
[10][1990] VR 745.
[11]At 759.
In this case the DPP has disclosed the existence of the relevant document in the context of his role as the prosecutor in these proceedings. The accused rely upon this disclosure as justifying their subpoena and their application to inspect the document produced.
In Alister v R,[12] Gibbs CJ,[13] and Wilson and Dawson JJ,[14] all accepted the proposition expounded by Lord Edmund-Davies in Burmah Oil Company Limited v Bank of England,[15] and Lord Wilberforce in Air Canada v Secretary of State for Trade,[16] to the effect that a subpoena duces tecum cannot be used legitimately as a mere fishing expedition but, it is sufficient to establish a legitimate forensic purpose for such a subpoena, if it is “on the cards” or there is a “likelihood” that the document sought would materially assist the defence case. Gibbs CJ spoke in terms of an accused person in a criminal proceeding being left with a “legitimate sense of grievance” if he was denied access to a document merely because he could not affirmatively establish that access would materially assist his case.
[12](1984) 154 CLR 404.
[13]Ibid, 414.
[14]Ibid, 438.
[15](1980) AC 1090.
[16](1983) 2 AC 394.
Mr Dennis argued that the materiality of the document might not be as great as the defence submitted because the Crown may have simply disclosed the document “out of an abundance of caution”. Thus, he said, the accused had to establish that the document would have the necessary materiality without reference to its provenance or the fact that, by implication at least, it had been produced in the discharge of a duty of fairness imposed by law on the prosecution.
This submission must be rejected. Not only is there no evidence that the Crown routinely discloses documents “out of an abundance of caution”, there is not the slightest suggestion that it did so in this case. The accused are entitled to have the benefit of any reasonable inference which can be extracted from the fact that the Director of Public Prosecutions disclosed the existence of the document under the description he gave it and in the way he did. They are entitled to the inferences that the Crown disclosed the document because it is at least “on the cards” that material in it would assist the defence case and that it so disclosed it as a matter of fairness.
In the circumstances of this case there can be no doubt that the accused have established a legitimate forensic purpose in seeking inspection of the document disclosed by the Crown. The Chief Commissioner’s submission to the contrary is rejected.
Public Interest Immunity
On this issue Mr Dennis sought leave to rely upon an affidavit of a detective sergeant of police, Anthony George Demarte sworn 17 July 2007, which affidavit exhibited a transcript of the interview recorded in the document sought by the accused. Detective Sergeant Demarte explained the circumstances of the making of the record of interview and explained in some detail the grounds upon which public interest immunity is claimed by the Chief Commissioner of Police. The affidavit was not served on any of the accused or their legal advisers and Mr Dennis sought an order that it, and its exhibit, remain confidential to the Court and that he be permitted to make submissions on the issue of public interest immunity in camera without the accused or their lawyers being present.
Mr McMahon of counsel who, on this application, represented all of the accused interested in obtaining access to the subpoenaed interview, opposed both the filing of the confidential affidavit and the Court’s hearing confidential submissions from Mr Dennis. His cogent arguments were, as might have been expected, couched in terms of open justice and fairness to the accused.
Distasteful as the idea of confidential evidence and submissions are to any court in our system of justice there are occasions where the open enunciation of the reason for claiming immunity will itself destroy or significantly impair the interest which is sought to be protected. And, of course, that circumstance cannot be discussed openly for the same reason. I decided that it was appropriate that the affidavit be at least examined on a confidential basis before proceeding further.
Having read the affidavit of Detective Sergeant Demarte and its exhibit I was firmly of the view that the affidavit should remain confidential and that I should hear confidential submissions from Mr Dennis. Having done so I am satisfied that a case of public interest immunity in respect of the information in the subject document is clearly raised. It is sufficient to say that to have disclosed the contents of the affidavit or required the submissions of Mr Dennis to be made other than in camera would have been inimical to the public interest unless significant other safeguards were taken. Having regard to the fact that I have decided to defer a final ruling on the question of inspection of this document by the accused for the time being I will not explore, at this stage, what precautions could be taken (restrictions on access, undertakings by counsel, redaction et cetera) to permit the affidavit or the exhibit to be conditionally disclosed. Any considerations of this nature can await further developments. The affidavit and Mr Dennis’ submissions will remain confidential to the Court until further order.
In Alister,[17] Gibbs CJ set out the test to be applied when determining whether a claim for public interest immunity should succeed. His Honour did so in the following passage:
Sankey v Williams establishes that when one party to litigation seeks the production of documents, and objection is taken that it would be against the 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 the 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 – ie 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.
[17](1984) 154 CLR 404.
The competing public interests in this case are the interests in a fair trial for the accused on these serious charges facilitated by their having access to all relevant material and the matters referred to in the affidavit of Detective Sergeant Demarte and the submissions of Mr Dennis, untested and unanswered as they are at present.
Mr McMahon strenuously argued against the immunity claimed by the Chief Commissioner and, in the course of doing so, referred to various matters to suggest that this document may, in reality, disclose little or nothing not already disclosed to or ascertainable by the accused. He tendered a number of statements which, he submitted, disclosed a number of matters to the accused which might have been of sensitivity also. However that may be, in the circumstances it would be inappropriate to comment on those submissions further, at least at this stage.
In R v Francis,[18] the New South Wales Court of Criminal Appeal was faced with a similar problem concerning a document for which public interest immunity was claimed. The leading judgment in that case was delivered by Simpson J who noted that in the circumstances, where a confidential affidavit had been permitted to be filed and the applicant for inspection had been unable to make informed submissions, she found it difficult to evaluate the importance to the applicant’s case of the material which the Court had before it. Her Honour observed that it was not readily apparent to her that the documents before the Court had any significance or importance that would assist in the resolution of the issues at the trial as they were explained to the Court of Criminal Appeal, and she found the contents of the confidential affidavit with which she was faced persuasive, just as I have done in this case. She noted that it was, of course, untested but concluded that more harm would be done to the public interest by disclosure than would be done by its being withheld. Thus, the Court of Criminal Appeal confirmed the District Court Judge’s decision and refused disclosure.
[18](2004) 145 ACrimR 233
In the present case I find it difficult to determine whether the document to which access is sought by the various accused would be of assistance to their case or not. This is partly because, at this stage of the proceeding, the defence to the charges which the accused face has not been opened or otherwise laid out. As further interlocutory proceedings occur and, perhaps as the trial unfolds, the defence position will become clearer. At some stage it might be possible to say that the document to which the accused now seek access would be of some assistance to their case so that the balancing exercise necessary to determine the public interest immunity question would need to be undertaken. However, at this stage the balance is heavily in favour of maintaining the confidentiality sought by the Chief Commissioner. This situation will remain unless and until the defence case can be demonstrated to require otherwise.
In light of the above I do not propose to rule on this application, finally, now. If, as the case unfolds, it becomes apparent that the accuseds’ case for disclosure of the document to them becomes arguable to a point where it might outweigh the public interest considerations raised by the Chief Commissioner, the matter can be raised again for further argument and, if necessary, further orders. It may then be necessary to reconsider a number of the provisional conclusions reached in this ruling. The accuseds’ legal advisers must monitor the situation so that, as the defences raised by their clients become more apparent, appropriate application can be made to re-open this question. The Court may also, of its own motion, raise the question again at a later time, as, of course, the accused will remain hampered by ignorance of the subject document and its contents.
There will be an order that the affidavit of Anthony George Demarte sworn 17 July 2007, together with its exhibit, be retained as a confidential affidavit not to be read other than by or upon the order of a judge and that the transcript of this application also remain confidential. Otherwise the application to inspect the recording of the interview the existence of which was disclosed by the Commonwealth Director of Public Prosecutions in his letter to the accuseds’ solicitors of 2 June 2007 will be stood over generally with liberty to apply.
Further Ruling of 20 June 2008
On 8 August 2007 the Court stood over generally an application brought by a number of the accused in this case concerning the inspection of a document, namely a tape recording of an interview with an unnamed person, which had been sought by subpoena. The application was to inspect the document. It was opposed by the Chief Commissioner of Police who claimed public interest immunity.
The Court ruled that on the material then available public interest immunity was established sufficiently to permit the filing of confidential evidentiary material. On that material it refused access to the document at that time. In concluding the matter, I said, "If, as the case unfolds, it becomes apparent that the accused's case for disclosure of the document to them becomes arguable to a point where it might outweigh the public interest considerations raised by the Chief Commissioner, the matter can be raised again for further argument and, if necessary, further orders."
During the course of the rest of the interlocutory proceedings at the end of last year and during the whole of this trial, I have kept this matter under review, referring to the papers in it from time to time. No application has been made by any of the accused to reopen the matter and nothing which I have seen or heard since the ruling of 8 August 2007 has caused me to do so of the Court's own motion.
Accordingly, it is appropriate, now that the evidence is closed, that this matter be finally concluded and in so concluding it, I dismiss the application to inspect the document to which the subpoena related.
The application will be dismissed.
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