R v Bushell; R v Tozer (No 11)

[2023] NSWSC 1447

Supreme Court

New South Wales

Medium Neutral Citation:

R v Bushell; R v Tozer (No 11) [2023] NSWSC 1447

Hearing dates:

26-28, 31 July, 1-4, 7-10 August 2023

Decision date:

10 August 2023

Jurisdiction:

Common Law

Before:

Rothman J

Decision:

(1) Uphold the Commissioner’s claim of public interest immunity.

(2) Accept that some parts of the material for which public interest immunity has been granted would materially assist the cases of the accused.

(3) The Court also accepts that some of the material that has been hitherto redacted is material required to be disclosed by the Crown.

(4) The Court requires the Crown to disclose the contents of the document hitherto redacted in accordance with the copy marked by the Court and handed to the Crown and the Commissioner for NSW Police on the following conditions:

(a) the newly redacted document in accordance with the foregoing be provided to Counsel for the accused only;
(b) counsel for the accused not further publish the document or its contents.

(5) Other than in accordance with the immediately preceding order and conditions, the document not be published except by order of the Court.

(6) Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW):

the statement of the person known as Witness A in the proceedings for which the statement was made dated 19 July 2022 disclosed to the accused by the Crown on 10 August 2023, and the content of that statement, is not to be further disclosed, except to:

(a) judicial officers;
(b) court staff;
(c) legal representatives of the Crown and the Commissioner of Police; and
(d) counsel for the accused.

Catchwords:

EVIDENCE – public interest immunity – police procedures disclosed – safety of witnesses – impeding future investigations – process adopted whereby some proposed redactions disallowed – document then to be made available to legal representatives only

Legislation Cited:

Evidence Act 1995 (NSW), s 130

Court Suppression and Non-Publication Orders Act 2010 (NSW), s 7

Cases Cited:

Alister v The Queen (1983) 154 CLR 404; [1978] HCA 43

Sankey v Whitlem (1978) 142 CLR 1; [1978] HCA 43

Category:

Procedural rulings

Parties:

Rex (Crown)
Daniel Michael Bushell (Accused)
John Jamie Tozer (Accused/Respondent)
Commissioner of Police, New South Wales Police
Force (Applicant)

Representation:

Counsel:
G Wright SC/J Sfinas (Crown)
R Pontello SC (Accused Bushell)
A Djemal (Accused Tozer/Respondent)
M Varley (Applicant)

Solicitors:
Director of Public Prosecutions (NSW) (Crown)
Jamieson Criminal Law (Accused Bushell)
Fahmy Lawyers (Accused Tozer/Respondent)
Crown Solicitor’s Office (Applicant)

File Number(s):

2018/229735; 2018/230025

ex tempore JUDGMENT

1. HIS HONOUR: Before the Court is an issue of public interest immunity that arises in an unusual manner. Ordinarily such issue arises as a result of a requirement on one or other of government agencies to produce documents. In this case a document, which has been marked on the voir dire as Exhibit M, has been disclosed to the accused and/or representatives of the accused.

2. Exhibit M on the voir dire, to anyone who inspects it, is a document that is heavily redacted. The Crown is in possession of a less redacted version of Exhibit M on the voir dire, which has been marked Exhibit P1 on the voir dire. By direction of the Court, the Commissioner of Police has provided to the Court Exhibit P2 on the voir dire, which is a wholly unredacted version of Exhibit P1.

3. I should, for the sake of ensuring the record is correct, make clear that Exhibit P1 on the voir dire also includes a Crown case statement in another matter, which is currently irrelevant, but gives background to the issues that might otherwise be contained in Exhibit P1. That Crown case statement will be returned to the Crown, as will Exhibit P1, in the fullness of time, and P2 will be returned to the Commissioner of Police.

4. In any event, the issue raised, as may be obvious from the foregoing, is that the Commissioner of Police raises public interest immunity in relation to the document that is in issue and which the Crown feels it is under an obligation to disclose to the accused. The document is a witness statement that was provided by a witness in these proceedings, but was provided in other proceedings. The document may be relevant to the credit of the witness who is to give evidence in these proceedings possibly indirectly.

5. Evidence of credit is almost by definition a matter that affects — directly or indirectly — the probability of the existence of a fact in issue. The fact in issue in these proceedings is the issue of the credit of a witness who will, as I understand it, give evidence damaging to the accused's interests in the trial.

6. I have remarked earlier in these proceedings that the Court is always in an unenviable position in these sorts of applications because little assistance can be given by counsel as a consequence of the fact that most counsel have not seen the document, or at least the document in its unredacted form. The Crown in this case is in a peculiarly better position than is usually the case where public interest immunity is argued, because it has seen what I have referred to as the less redacted document, which is Exhibit P1.

7. The principles governing public interest immunity are well-known and relatively uncontroversial. Most often they are addressed by reference to the High Court judgment in Alister v The Queen (1983) 154 CLR 404; [1978] HCA 43, which deals with the common law doctrine and also deals with s 130 of the Evidence Act 1995 (NSW) (which in my view takes the matter no further). In Alister, Gibbs CJ described the process to be undertaken by the Court when considering claims for public interest immunity, and in so doing approved the approach taken in Sankey v Whitlam ^[1] as follows:

“Sankey v. Whitlam 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 — 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.”^[2]

1. Sankey v Whitlem (1978) 142 CLR 1; [1978] HCA 43.

2. Alister v The Queen (1983) 154 CLR 404 at 412 (Gibbs CJ); [1978] HCA 43.

8. When, as here, one is dealing with a criminal prosecution and the duty of disclosure of the Crown, two public interests are considered in determining whether public interest immunity arises and they weigh heavily in favour of the production of documents.

9. Where the liberty of an accused is at stake, there is an extremely important public interest to ensure that all material is produced that may tend to inculpate or exculpate the accused, or may cast doubt on the reliability or credibility of evidence or witnesses upon which the Crown relies.

10. If there be a public interest in keeping matters secret, then processes must be available, in my view, to ensure within reason that the accused is afforded an appropriate opportunity to understand all that could be put and to rely on it.

11. For obvious reasons, the accused has seen only the heavily redacted document and, therefore is not in a position to be able to put submissions on the contents of the document that have been redacted and whether they should be produced or are the subject of the duty of disclosure.

12. I remarked recently in a judgment in relation to a Commonwealth offence (which related to the charge of a person being a director of a terrorist organisation and a claim for public interest immunity that arose a number of times in that proceeding) that the process of determining public interest immunity and how the Court deals with it involves three steps. The first step is an assessment of the harm that would flow, if any, from the disclosure of the material to which objection has been taken. This involves a determination that there would be such harm that the duty of disclosure should be outweighed.

13. Nevertheless, it is for the moving party to satisfy the Court that such harm would flow and that harm must be demonstrated. In those circumstances, the initial approach of the Court would be prima facie to incline against disclosure.

14. The second step is if, notwithstanding the initial approach and the prima facie position, the Court came to the view that public interest immunity arose and allowed for the redacting of a particular document or the non-disclosure of some or other document, the accused in a criminal trial who seeks access to the redacted material would need to show that disclosure would be likely to assist materially the accused's case.

15. Thirdly, if the Court accepts that access to certain information that is otherwise subject to public interest immunity should be disclosed in the interests of the accused, the conflicting aspects of the public interest are dealt with and must be weighed again so that, to the extent possible, a process can be adopted that would allow for the material to be viewed by the accused or the accused's legal representative, notwithstanding the public interest immunity.

16. Those are the steps which I apply, applying the principles in Sankey and Allister to which I have referred already.

17. I have received and read a confidential Affidavit of the current Commissioner of Police who was at the time of the swearing of the affidavit the Assistant Commissioner. That deals with a number of matters, each of which show an unacceptable risk to the safety of persons who have assisted the police, and/or their families, such that the disclosure of information that would, or could, identify the persons would be extremely problematic, would interfere with proceedings in relation to other charges and the investigation of those charges, and would, on the material to which the deponent testifies, satisfy the test necessary to make the initial assessment that the public interest immunity overrides the duty to disclose.

18. Because the issue has arisen in the manner it has, of necessity it involves the Court - I hasten to say reluctantly - becoming involved in what the Crown is required to disclose. That is not a function the Court would ordinarily get involved with during the course of a trial. It may become involved in it if there is a miscarriage of justice associated with a failure to disclose, but that's a slightly different issue.

19. Obviously, the Crown takes the view (and I make it clear that my view — is that it has done so appropriately) that in the case of determining whether disclosure is required, it is better to err on the side of caution and disclose more rather than less. I have no doubt that that is an appropriate course for the Crown to undertake and nothing I am about to say cavils with that approach or criticises the Crown for the very proper manner in which these matters have been raised and the manner with which they have been dealt.

20. Having held that the material in the confidential Affidavit gives rise to an assessment weighing its probative value or its usefulness of the material to the accused, and the unacceptability of the risk associated with its disclosure, particularly to the outside world, steps two and three arise. I have made clear already, I hope, that I have found that public interest immunity arises.

21. I am assuming, because of the manner in which this has arisen, that counsel for the accused are seeking to establish that which I have referred to as “step two”; namely, that the disclosure of the contents of the document that have thus far been redacted so they cannot read it, should be the subject of access because it would be likely to assist materially in the running of their case.

22. I accept that there is material in the contents that would be likely to assist material in the running of the accused’s case and which the accused, or their legal representatives, have not seen.

23. I do not consider that all of the material in the unredacted version of the statement is in that category. I also do not accept that all of the material that is in the lesser redacted version of the statement is in that category. In other words, there is some material which the Commissioner seeks to redact which is not likely to assist materially in the accused's case. Although there is some that is.

24. As a consequence, what I have done and what I intend to do is the following. First, I will hear from the parties as to any issue that may arise as to this course, but the course I propose on a preliminary basis is this: I have already marked with highlight a copy of the less redacted version of the document in a manner which redacts further aspects of that document, but not as much as is redacted in the fully redacted document. In the course of that, I have given letters as pseudonyms to names so that some of the sentences can make sense, given the redacted material.

25. I have also decided that the material is of a kind that would assist counsel in cross-examining a witness to be called, and is not the kind of material on which it would seem to me instructions are needed. As a consequence, it seems to me that the process that is best served in the balancing of these matters is, firstly, to hand to the Commissioner of Police and the Crown my marked copy of the lesser redacted material, and hear from the Commissioner as to anything they wish to say about that.

26. Secondly, once I decide upon what ought to be disclosed, arrive at a procedure in which counsel, and only counsel, will be given the document and the document not to be published beyond that. Once I hear from the Commissioner and the Crown, to the extent they wish to be heard, on that procedure and/or any omission I may have made or overlooked in the course of these markings, I will determine my final position.

27. Obviously the words “anything I may have overlooked”, are not intended to suggest that either the Crown or the Commissioner of Police is not able to submit that some of the material is either wrongly to be redacted or other material has been wrongly decided the other way. I am not foreclosing any argument, it is always difficult to deal with it in the absence of detailed submissions.

28. The Court makes the following orders:

1. Uphold the Commissioner’s claim of public interest immunity.

2. Accept that some parts of the material for which public interest immunity has been granted would materially assist the cases of the accused.

3. The Court also accepts that some of the material that has been hitherto redacted is material required to be disclosed by the Crown.

4. The Court requires the Crown to disclose the contents of the document hitherto redacted in accordance with the copy marked by the Court and handed to the Crown and the Commissioner for NSW Police on the following conditions:

1. the newly redacted document in accordance with the foregoing be provided to Counsel for the accused only;

2. counsel for the accused not further publish the document or its contents.

5. Other than in accordance with the immediately preceding order and conditions, the document not be published except by order of the Court.

6. Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW):

the statement of the person known as Witness A in the proceedings for which the statement was made dated 19 July 2022 disclosed to the accused by the Crown on 10 August 2023, and the content of that statement, is not to be further disclosed, except to:

1. judicial officers;

2. court staff;

3. legal representatives of the Crown and the Commissioner of Police; and

4. counsel for the accused.

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Endnotes

Decision last updated: 27 November 2023