R v Carne

[1996] QSC 130

IN THE SUPREME COURT
OF QUEENSLAND

Brisbane  

Before the Hon. Mr Justice Mackenzie  Motion 5828/96

[R. v. Carne]

THE QUEEN

v.

DAVID NICHOLAS CARNE  Respondent

JUDGMENT - MACKENZIE J.

Judgment Delivered 18 July 1996

Judgment delivered 18/07/96

CATCHWORDS:            CRIMINAL LAW - subpoena to produce evidence - whether production of evidence will reveal the identity of confidential police informants - whether subpoena should be set aside.

Counsel:R. Martin for Commissioner of Police.

M. Griffin for respondent.

Solicitors:Director of Public Prosecutions for Commissioner of Police.

Legal Aid Office for respondent.

Date of Hearing:                9 July 1996

IN THE SUPREME COURT
OF QUEENSLAND

Brisbane  

Before the Hon. Mr Justice Mackenzie  Motion 5828/96

[R. v. Carne]

THE QUEEN

v.

DAVID NICHOLAS CARNE  Respondent

JUDGMENT - MACKENZIE J.

Judgment Delivered 18 July 1996

This is an application by the Commissioner of Police to set aside a subpoena issued on behalf of the respondent David Nicholas Carne, requiring production of a document referred to as the major incident log in respect of the investigation of the murder of Heather Edgerton.  The respondent has been jointly charged with one Darren James Harris who is not a party to the application. 
          According to an affidavit of Lyle Allan Parker, Deputy Solicitor for Prosecutions (Preparations) in the office of the Director of Public Prosecutions, the prosecution is complex but its principal features are alluded to in the Crown Prosecutor's opening in the committal proceedings.  The transcript of the opening is annexed to Mr Parker's affidavit.  In summary the Crown opening made the following allegations.  Ms Edgerton died on Sunday, 28 October 1990 in the area between Beaudesert and the New South Wales border.  She was shot once in the head with a high-powered rifle, without any apparent motive.  Her body was transported in the boot of a motor vehicle and dumped in an isolated spot some distance off a road.    
          The previous day a man named Jacobsen was murdered at Woodenbong just across the New South Wales border.  Harris confessed to killing Jacobsen and Carne pleaded guilty to being an accessory after the fact.  Jacobsen had also been shot once in the head with a high-powered rifle, transported in the boot of a motor vehicle and dumped in an isolated place.  No clear motive for the murder was established. 
          When Carne was questioned about the murder of Jacobsen he gave a false alibi for the day of Edgerton's disappearance.  Carne and Harris were linked to Edgerton's death through a brown Morris 1100 of which they had possession.  The vehicle had been seen during 28 October in significant locations in the area between Beaudesert and the New South Wales border, including the area where Edgerton's body was found, the area where the deceased's white Fairlane vehicle was found abandoned and in proximity to the white Fairlane while both vehicles were travelling in the area.  There was some evidence of identification of the respondent in the Morris 1100, in the Ford Fairlane wearing a hat similar to that of the deceased and in a shop in the area.  There was no fingerprint evidence implicating the respondent in the Ford Fairlane.  Two nuts and a washer were found in the glove box of the Morris 1100 and a washer consistent in size with that found in the Morris was found 17 metres from the body.  There was a rum and coke carton in the Morris and a can consistent with having come from that carton was found "some little distance" from the location of the body.  There is also a submission in the opening that evidence concerning the New South Wales murder may be admissible as evidence of similar facts.  It is not necessary to express a view on that proposition for the purposes of the present application.       The document produced to me as the "major incident log" is, as explained in Mr Parker's affidavit, a series of printouts of separate entries in a computer by persons who cannot always be identified.  It is common ground that this collection of documents fits the description of the document sought.  The grounds of objection to the subpoena are stated as follows in Mr Parker's affidavit:-

(a)that answering the subpoena will require the revelation of names and other details of members of the public who have provided confidential information.

(b)that answering the subpoena in accordance with the law is in all the circumstances oppressive.

(c)that the subpoena amounts to "fishing".

These submissions were repeated and developed by the Crown Prosecutor before me.  It was submitted that the log fell within the category of privilege relating to protection of informers.  It was submitted that in a case where it was alleged that documents which would otherwise be privileged should nonetheless be revealed to assist the defence in a criminal case it was incumbent initially upon the defence to identify a legitimate forensic purpose for which access to the documents is sought (R. v. Saleam (1989) 16 NSW LR  14, 18).  Mr Griffin accepted the burden of particularizing his forensic purpose which he did in the following way:-

"This is the argument put simply.  This is a stale case.  The offences occurred in 1990.  It is now 1996.  A committal was held in February of this year and as a result of that committal and because of the nature of the investigation the defence have legitimate grounds of forensic inquiry in relation to certain matters.  They are most particularly two.  One of them is this:  that that has been referred to already, the photoboards, persons one of whom is named Creighton, was on the photoboards.  He was a suspect.  And the second point really relates to this - and is probably more significant:  Creighton and one other person were originally suspects as well in the investigation.  What the defence wants to do is look at the course of the investigation and find out if possible from this log, as it must appear from the log because of the very nature of the way the log itself is kept, why Creighton and why the other person were disregarded as suspects."

The reference in that passage to earlier discussion of photoboards is to a passage in which Mr Martin, in answer to a question from me, said that he believed the purpose for which the log was sought was to clarify evidence which was left in a vague state at the committal "about the details of presentation to various witnesses of photoboards".  Further discussion elicited that the process of preparation of the photoboards and the process by which the witnesses were asked to identify anyone they recognized were both of interest to the defence. 
          Mr Martin submitted that Mr Parker's affidavit established that so far as he could determine there were no references to the process of compiling of identification boards or individual photos and of showing  them to any person or persons.  The result was that the forensic purpose relied on in relation to identification could not be furthered by making the major incident log available.  Notwithstanding this submission, I was mindful of the principle that a more liberal approach should be adopted in criminal cases than in civil proceedings to the issue of making information available to the defence (Alister v. The Queen (1984) 154 CLR 404, 455-6). Because I was satisfied that prima facie Mr Griffin's purpose was more than a "mere fishing expedition" if relevant entries existed, I indicated to the parties that I would inspect the documents myself to satisfy myself that even if produced they could not assist the accused to prove his innocence. As far as my reading of the document has revealed, there are only two references to the process of identification by persons. The names of both persons appear on the list of witnesses provided to me at my request by Mr Martin. As far as I can tell there is no material in the log relating to the other issue in connection with identification, the method of compilation of any materials used for the process of identification.
          The log contains a vast number of entries with no relationship to the stated forensic purposes.  Not surprisingly it contains the names of many people who have provided information to the police.  Many of these appear in the list of witnesses.  Some do not.  I am conscious of the proposition stated in R. v. Saleam, 18, that if no public interest immunity or other privilege is claimed and upheld in respect of documents and if a legitimate forensic purpose for their production has been demonstrated, the judge should not withhold access to the documents simply on the basis that, in his view, that purpose would not be satisfied in that particular case because he can see nothing in the documents which will in fact assist the accused in his defence.  The critical question is whether there is a legitimate claim of privilege on the basis that the identity of informers will be revealed.  The rule of practice of the Crown Prosecutor disclosing relevant information to the defence was adverted to during submissions and there is no reason to suppose that that will not be conscientiously followed. 
          I am satisfied that the log contains the names of persons by whom information was given and the nature of that information.  If a witness were to be asked about that information the privilege attaching to such information would apply.  Notwithstanding the view expressed in Cain v. Glass (No.2) (1985) 3 NSW LR 230, 247-8 by McHugh J.A. that no question of weighing the competing public interests arises where a claim of public interest immunity is based upon an assertion that the name of a police informer would be disclosed if documents were produced, I also note the reservation of that question in AG for New South Wales v. Stuart (1994) 34 NSW LR 667, 685. To the extent that that a weighing of interests is necessary, the context is that the respondent's defence will be alibi. From submissions it appeared that Mr Griffin would wish to ascertain from a police officer that other people were, during the investigation, suspects and wishes to have the log for the purpose of ascertaining whether it discloses why the persons were discarded as suspects.
          I digress to observe that a defence which merely seeks to ask a police officer whether at some stage of an investigation a named person other than the accused was investigated or suspected raises difficulties.  If a police officer is allowed to be asked that question and then asked why the suspect ceased to be of interest it invites a reply in hearsay and opinion terms (such as that offered at the committal proceedings) that the suspect's movements at the relevant time were satisfactorily accounted for.  There will be a substantial risk that the issues in the case will tend to be enlarged by such questioning because if the seed of suspicion has been sown in that way without any more substantial basis for suspecting involvement the Crown may feel that it is necessary to eliminate the involvement of the named person by calling him or her and the witnesses verifying presence in some place inconsistent with being involved in the murder.  The more persons who came under police attention the wider the ambit of the case will be.
          Turning to the balancing in this particular case the log contains reference to the names of  persons who have given information to the police but does not contain material further advancing the lines of inquiry which are relied on in respect of identification.  With respect to the second forensic purpose, I was referred to a passage of the evidence of Detective Sergeant Elloy in the transcript of the committal proceedings.  It is apparent from that part of the transcript that the issue of other named persons being under suspicion was known to the defence.  During the hearing before me, Mr Martin nominated those pages (474, 491, 502, 503, 504 and 505) which appear to be those relating to institution of enquiries in relation to named persons who were associates of the respondent.  Nothing I can find in the log bears on the question of the reason for their elimination notwithstanding the supposition by Detective Sergeant Elloy that there might be such information in the log.  It is therefore not "on the cards" (Alister v. The Queen, 414) that anything in the log would materially assist the respondent in his defence.  Therefore, because production of the log as a whole, which is the basis upon which the matter was argued, must be refused, the subpoena is set aside.
          I order that the subpoena be set aside.