R v Cox & Sadler (No 3)
[2006] VSC 58
•23 February 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1453 of 2003
| THE QUEEN |
| v |
| STEPHEN COX AND GLENN SADLER |
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JUDGE: | KAYE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 February 2006 | |
DATE OF RULING: | 23 February 2006 | |
CASE MAY BE CITED AS: | R v Cox and Sadler (Ruling No. 3) | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 58 | |
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CRIMINAL LAW – Subpoena to produce documents – Public interest immunity.
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APPEARANCES: | Counsel | Solicitors | |
| For the Crown | Mr M. Tovey QC with Mr D. Brown | Office of Public Prosecutions | |
| For the Accused Cox | Mr B. Young | Tony Hargreaves & Partners | |
| For the Accused Sadler | Mr G.A. Georgiou with Ms H.P. Spowart | Victoria Legal Aid | |
| For the Respondent (the Chief Commissioner of Police) | Mr G. Maguire | Victorian Government Solicitor | |
HIS HONOUR:
In response to a subpoena served by the accused Cox, the Chief Commissioner of Police has provided a document entitled “Information Report” No. FH82R456 dated 20 January 1999, substantial portions of which have been blacked out. The Chief Commissioner has objected to providing the Information Report unedited on the grounds that the parts blacked out are subject to a claim for privilege based on public interest immunity.
The claim by the Chief Commissioner is supported by an affidavit of Detective Senior Sergeant John Rodger sworn 21 February 2006. In the course of submissions before me a copy of the unedited Information Report was handed to me with the consent of both parties. Although I expressed some reluctance to rule on that document when it had not been made available to the accused, I accepted that it was necessary for me to do so, as the only practicable means of resolving the issue. Nonetheless the fact that counsel for the accused have not seen the document in its unedited form means that I do not have the benefit of specific submissions by the accused in respect of the edited sections.
I note that the submissions made on behalf of Cox were supported by Mr Georgiou who appears for the co‑accused Sadler. It is accepted that, if the document is to be released, those acting for Sadler should also be entitled to a copy of it.
In his affidavit, Mr Rodger has deposed that the edited portions of the Information Report contain material relating to an unrelated investigation and intelligence probe which identifies the targets of criminal investigation and the intelligence available at that time in relation to those targets. Mr Rodger further states that this material was sourced from confidential informants and is not in any way related to the current proceedings or any witness associated with the proceedings. Mr Rodger believes that release of the information which has been edited would inhibit future co‑operation of potential witnesses or informers, compromise the intelligence holdings of Victoria Police and other agencies, lead to the identification of the targets of criminal investigation, and thus inhibit the ability of Victoria Police to investigate high level criminal activity.
The principles which are applicable to a claim for public interest immunity were summarised by me in a previous ruling in this matter.[1] It is not necessary for me to set them out at length in this ruling. In essence the Court is required to balance, on the one hand, the extent, if any, to which harm might be done to the public interest by publication of the document in its unedited form, with, on the other hand, the extent to which the administration of justice would be frustrated or impaired if the documents were withheld from the accused. In carrying out such a balancing exercise, it is important to bear in mind that the present case involves serious criminal charges against the accused. Both the community and the accused have a high public interest in there being a fair trial of those charges. Accordingly, as I noted in my previous ruling, the authorities recognise that it is proper for me to adopt a “more liberal” approach to the production of the documents in an unedited form than I might adopt in a civil case.
[1]R v Cox and ors (Ruling No. 3) [2005] VSC 249R.
The Information Report which is the subject of this ruling was compiled by Detective Senior Constable Craig Blakeley who was then a member of the Asian Squad. Mr Blakeley will be a witness in the forthcoming trial. The Information Report purports to contain information provided to Mr Blakeley by informer No. 1-68 “regarding high level heroin trafficking”. It is common ground that that informer was Kenneth Lai, who is also a witness in the forthcoming case. The Crown case is that the conspiracy alleged against both accused commenced with an attempted corrupt approach by the accused to Lai, who was then acting as an informer to the Drug Squad. In that capacity Lai had informed on Duy Le. When Lai rejected the approach by Cox and Sadler, the Crown alleges that the accused then successfully induced Duy Le to be the vehicle for whom they were to traffick drugs. Duy Le was then acting also as an informer to the Drug Squad.
The edited sections of the Information Report concern information supplied by Lai to the Asian Squad relating to a number of drug dealers. As noted from the “event summary” at the top of the report, the information was in respect of relatively high level heroin trafficking. Mr Young, who appears for Cox, in submissions before me nominated a number of purposes for which the information was sought by the accused, and which he contended would be legitimate forensic purposes in the forthcoming trial. Primarily those purposes can be distilled into two, namely –
(a)The Information Report reveals the role, and the extent of the role, of Lai as an informer to the Asian Squad. Hitherto Lai has not conceded that he was informing to the Asian Squad, certainly on the scale disclosed by the Information Report.
(b)The Information Report discloses that Lai had a relationship with a number of significant drug dealers, and certainly his role in the illicit drug trade was more significant than has hitherto been apparent.
In my view both of those purposes, outlined by Mr Young, would be legitimate forensic purposes in the forthcoming trial. Indeed Mr Maguire, who appeared for the Chief Commissioner, did not seek to argue to the contrary.
Although the claim for privilege deposed to by Mr Rodger in his affidavit is, to a significant degree, a “generic” claim, it is evident, both from submissions by Mr Maguire, and from reading the report itself, that the main concern of the Chief Commissioner is in respect of the identification of persons nominated by Lai to Mr Blakeley as significant drug dealers in respect of whom Lai was giving information. Mr Maguire submitted to me that a number of those persons so nominated were at least potential targets of police investigation. In response Mr Young contended that, given that the report was written six years ago, the sensitivity of revealing the names of those drug dealers must accordingly have diminished. Mr Maguire, while accepting that point, nonetheless contended that the information provided by Lai is part of the stock of information held by the Victoria Police Force, which can be available for future use.
In general I do accept that, notwithstanding that the report is some six years old, there is a legitimate public interest in not revealing the names and identities of the persons referred to in the Information Report, other than where the identity of those persons is otherwise made clear, either by extrinsic evidence, or alternatively by the part of the report which has already been disclosed. In this context I note that on the last page, under the heading “Entities and Tasks”, some five names are specifically listed, together with the dates of birth of those persons. However the unedited sections do not reveal the connection or relevance of those persons other than in a general sense.
On reading the Information Report I do not consider that, in order to pursue the legitimate forensic purposes outlined to me, it is necessary for the accused to know the names of the persons identified by Lai, where those names are not otherwise disclosed in the unedited sections of the report. In other words I do not consider that the forensic purposes outlined by Mr Young would be compromised, or compromised sufficiently, if those names were withheld. On the other hand I do accept, as I have already stated, that there is an ongoing public interest in the Chief Commissioner not disclosing those names, where she has not otherwise done so. Bearing those matters in mind, I otherwise consider that the section of the Information Report entitled “Text” should be disclosed to the accused, save for the parts, which I shall refer to below, which are to be deleted.
The third page of the Information Report contains a section entitled “Analyst’s Comment”. The whole of that comment has been edited by the Chief Commissioner before it was provided to the accused. I uphold the claim for public interest immunity in respect of that section. There is no legitimate forensic purpose which would be served in the accused having access to that information and which would outweigh the public interest in its suppression.
It is necessary for me to deal with the section of the Information Report entitled “Text” in some detail.
I order disclosure of the first three paragraphs of that section, namely from the words “S-Ds Blakeley … “ to “ … given enough notice”.
I order release of the fourth paragraph (commencing “Registered informer 1-68 is supplied … “ to “ … as runners”) save as follows: each of the names (including nicknames contained in inverted commas) shall be deleted; each of the mobile telephone numbers shall be deleted; the motor vehicle registration numbers referred to on the second last line shall be deleted.
I order release of the fifth paragraph of the section entitled “Text” (commencing “When arranging a deal” to “two days’ notice” with each of the names of persons deleted.
I order release of the sixth paragraph of the section entitled “Text” (“… works for” to “the exchange”) with deletion of the names of persons, deletion of the name of the restaurant on the first line (so that the part released shall read “ … the owner of … Restaurant in Little Bourke Street Melbourne”), and deletion of the name of that restaurant wherever it recurs in the text.
I order release of the seventh paragraph of the text (commencing “ … and … are also closely associated with” to “are located in Sydney and Perth”) with the names of persons being deleted, with the names of the restaurant and two clubs on the first line being deleted; with the name of the restaurant being deleted throughout the paragraph; with the words in parentheses (“meaning … “) on the second line deleted; with deletion of the fifth sentence (“… has three … America”); and with the words in parentheses on the third last line (“apparently meaning … “) also deleted.
I order release of the eighth paragraph (“The informer has purchased … “)with deletion of the name on the first line, and deletion of the names of each of the syndicates referred to in the paragraph. I also uphold the claim for public interest immunity in respect of the last sentence (“These brands are … “). That sentence may be deleted.
I order release of the ninth paragraph (“Once trusted … “)with deletion of the name of the syndicate.
I order release of the tenth paragraph commencing (“In October 1998 … “)with each of the names therein deleted.
In respect of the eleventh paragraph (“Quoc Bao … “) I order release of the whole of that paragraph, save that the address, the MNI numbers and the telephone numbers may be deleted. Otherwise I reject the claim for public interest immunity in respect of that paragraph. I do not accept that the privilege extends to the names in that paragraph.
The twelfth paragraph (“The informer states … “) has been disclosed in the Information Report provided to the accused. I uphold the claim for public interest immunity in respect of the mobile telephone number.
The thirteenth paragraph (“Le runs … “) has also been disclosed. I uphold the claim for public interest immunity in respect of the section of that paragraph which has been deleted.
I order release of the fourteenth paragraph (“The informer has further stated … “), subject to the deletion of the name of the restaurant referred to on the first line, deletion of the words in parentheses on the first line (“next to … “), and deletion of each of the persons’ names in the paragraph.
I uphold the claim for public interest immunity in respect of the fifteenth paragraph of the document which appears at the foot of p.2 of the text provided to me (“the informer stated that he is aware …”).
I order release of paragraph sixteen (“The informer is also …”), with each of the names of each of the persons therein referred to deleted. I also uphold the claim for privilege in respect of the mobile telephone number in line 2, each of the names which are set out in inverted commas, the date of birth and address on the fourth line, and the words in parentheses on the fifth line.
As I previously stated, I uphold the claim for privilege based on public interest immunity in respect of the section entitled “Analyst’s Comment”.
In the copy document provided to the accused, it appeared as if a blank sheet had been provided under the words “registered informant YN: register number”. However on the text provided to me immediately beneath those words is the section entitled “Entities and Tasks”, which appears on the next page of the document that was provided to the accused. In other words, nothing has been deleted from the section commencing “Forwarded to” in the document provided to the accused.
Conclusion and Order
The above ruling identifies each of the edited sections of the subpoenaed document in respect of which I uphold the objection of the Chief Commissioner based on public interest immunity. Apart from those edited sections in respect of which I have upheld that claim, the Chief Commissioner is directed to produce to the Court, pursuant to the subpoena served on her on behalf of the accused Cox, unedited copies of the Information Report No. FH82R456 in accordance with this ruling. I further direct that, upon production of those documents to the Court, copies be released to each of the parties.
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