R v Crupi
[2019] VSC 810
•11 December 2019 Revised on 12 February 2021 by the addition of n 25
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2019 0245
| THE QUEEN |
| v |
| VINCENZO CRUPI |
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JUDGE: | BEACH JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 3 December 2019 |
DATE OF JUDGMENT: | 11 December 2019 Revised on 12 February 2021 by the addition of n 25 |
CASE MAY BE CITED AS: | R v Crupi |
MEDIUM NEUTRAL CITATION: | [2019] VSC 810 |
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OPEN COURTS – Application for suppression and closed court orders – Application for non-publication order – Whether non-publication order necessary to prevent prejudice to administration of justice – Whether non-publication order necessary to protect safety of any person – Whether non-publication order would be ineffective – Open Courts Act 2013, s 18(1)(a) and (c).
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms D Karamicov | Office of Public Prosecutions |
| For the Accused | No appearance | |
| For the Chief Commissioner of Victoria Police | Ms S Maharaj QC with Ms K Chan | Victorian Government Solicitors Office |
| Amici curiae | Mr R B C Wilson with Ms E Nikou Madalin |
HIS HONOUR:
In the early hours of 15 March 2016, Joseph Acquaro, a solicitor, was shot three times as he walked towards his car on St Phillip Street, Brunswick East. On 14 November 2019, the accused was committed to stand trial for the murder of Mr Acquaro.
The Crown case is that the accused shot Mr Acquaro. The accused denies this. As part of his defence, the accused will contend at trial that Mr Acquaro was a police informer and there is a reasonable possibility that he was shot by, or at the instigation of, someone who believed that Mr Acquaro had informed on them to the police.
In the course of the committal proceeding, a witness summons was issued on behalf of the accused which resulted in the Chief Commissioner of Victoria Police producing to the court and the parties a number of documents that disclosed the fact that Mr Acquaro did in fact provide information about a number of people to police.
By an application filed 22 November 2019, the Chief Commissioner seeks an order prohibiting the disclosure by publication or otherwise of material produced following the issuing of the witness summons, to the extent that such material discloses the extent of Mr Acquaro’s contact with Victoria Police.[1] The order sought, however, would permit disclosure of such material in limited circumstances, including to the Royal Commission into Management of Police Informants.
[1]While the terms of the relief sought in the Chief Commissioner’s application are more elaborate, the above description is sufficient for present purposes.
The parties and their cases
In order to protect the subject matter of the Chief Commissioner’s application, an order was made that the application be heard in closed court. Evidence was tendered on affidavit on behalf of the Chief Commissioner, and written submissions were received from the Chief Commissioner and counsel who had been appointed amici curiae.[2]
[2]On 29 November 2019, Hollingworth J appointed the amici in relation to the Chief Commissioner’s application.
At the hearing of the Chief Commissioner’s application, counsel for the Chief Commissioner advanced argument in support of the suppression and non-publication orders sought; the amici advanced argument why the orders sought on behalf of the Chief Commissioner should not be made; the accused took no part in the argument; and counsel for the Crown, without taking any particular position, advanced brief argument designed to assist the Court in the resolution of the Chief Commissioner’s application.
The Chief Commissioner of Victoria Police
The Chief Commissioner based his application on the provisions of the Open Courts Act 2013 (‘the Act’) and the inherent jurisdiction of the Court. In relation to his claim under the Act, the Chief Commissioner relied upon ss 17 and 18(1)(a) and (c), which relevantly provide:
17Court or tribunal may make proceeding suppression order
A court or tribunal on one or more of the grounds specified in section 18 may make a proceeding suppression order to prohibit or restrict the disclosure by publication or otherwise of—
(a)a report of the whole or any part of a proceeding;
(b)any information derived from a proceeding.
18Grounds for proceeding suppression order
(1)A court or tribunal other than the Coroners Court may make a proceeding suppression order if satisfied as to one or more of the following grounds—
(a)the order is necessary to prevent a real and substantial risk of prejudice to the proper administration of justice that cannot be prevented by other reasonably available means;
Example
Another reasonably available means may be directions to the jury.
…
(c)the order is necessary to protect the safety of any person;
…
In relation to that part of the application that did not rely on the provisions of the Act, the Chief Commissioner relied upon this Court’s inherent jurisdiction ‘to protect its own process’[3] and ‘conduct its own proceedings in the way best calculated to advance the interests of justice’;[4] and also to this Court’s power to make an appropriate order where ‘there is a real risk of serious interference with the administration of justice’.[5]
[3]News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248, 260 [40] (Warren CJ and Byrne AJA).
[4]BK v ADB [2003] VSC 129, [6] (Nettle J).
[5]DPP v Williams (2004) 10 VR 348, 349 [5] (Cummins J). See further, HT v The Queen (2019) HCA 40, [42] (Keifel CJ, Bell and Keane JJ) and [82] (Gordon J).
In support of his application, the Chief Commissioner relied upon affidavits of Acting Superintendent Damien Jackson of Victoria Police sworn on 22 and 26 November 2019.
In his evidence, Acting Superintendent Jackson gave two principal reasons why the fact of Mr Acquaro’s informing should be the subject of a non-disclosure order. The first (described by counsel for the Chief Commissioner as ‘the safety issue’) was that disclosure of the fact that Mr Acquaro was an informer posed a considerable risk of serious injury or death to Mr Acquaro’s former de facto partner (someone from whom he was estranged at the time of his death), her two children and his own three children.
Acting Superintendent Jackson’s evidence was that Mr Acquaro had been ‘affiliated’ with an organised crime enterprise that was known for its strict enforcement of a code of silence. Breaches of this code are punished. Punishment includes the killing of suspected informers and violent reprisals against, and the killing of, their family members and associates. Punishment, it was said, is meted out even where the person believed to have been an informer is already dead — so as to serve as a warning to others against informing.
The risk to Mr Acquaro’s children is said to exist notwithstanding that they have a ‘close relationship’ with the family that controls the relevant criminal enterprise that would seek to enforce the code of silence. Moreover, while Mr Acquaro’s children might be thought to have an interest in the present application, the Chief Commissioner maintained that they should not be privy to any of the material relied upon in this application because of a ‘firm belief’ that any information disclosed to at least two of the children would be conveyed by them to the family controlling the organised criminal enterprise.
The second reason given by Acting Superintendent Jackson for contending that the fact of Mr Acquaro’s informing should be the subject of a non-disclosure order (described by counsel for the Chief Commissioner as ‘the chilling effect issue’) was concerned with the potential compromise of the ability of the police to obtain information from informers if people who might become informers declined to do so because of a risk that they might subsequently be named as informers. It was submitted that a person who observes the disclosure of the identity of an informer may not come forward for fear that his or her identity might be similarly disclosed after becoming an informer. This, it was contended, would have a ‘chilling effect’ on the ability of police to obtain important information from informers.[6] In relation to this issue, Acting Superintendent Jackson said:
Police rely heavily on community assistance to gather timely and accurate information and intelligence regarding serious criminal activity. Police officers generally, and in particular the various Crime Squads, Taskforces and Criminal Investigation Units, seek to cultivate community contacts and encourage trust and confidentiality between officers of Victoria Police and members of the community. Use by police of human sources as sources of valuable information is a highly useful investigative tool. This contact underpins the ongoing gathering of intelligence by Victoria Police which assists in relation to criminal investigations. The gathering of intelligence, information and evidence is critical to the functions of Victoria Police, and in particular its function of preventing and detecting criminal activity and protecting the community.
If it becomes known more generally that the identity of human sources cannot be protected, I believe that this will discourage members of the community more generally from assisting Victoria Police in the future. Community members often provide information to Victoria Police on the basis that we will make every endeavour to keep their identities anonymous, even after death. If that confidential basis for the provision of information is undermined in any way, there is likely to be a loss of trust in the process with the consequence that less information will be forthcoming. Information from the community is an important source of intelligence, and so a reduction in that source of information would have a detrimental impact on Victoria Police’s functions. The loss of avenues of intelligence will adversely impact upon Victoria Police’s ability to prevent, investigate, and prosecute crime creating a substantial risk to the proper administration of justice, to public safety, and to the interests of the States and national security.
I believe it will also adversely impact upon the ability of other investigative agencies throughout Australia to collect intelligence from human sources. I believe publication of the PII documents would cause those potential sources to harbour concerns that either the agency they are working with would publish a human source’s identity in the same manner, or would disclose it to Victoria Police which may in turn publish that information. That will also create substantial risk to: the administration of justice, and to operations affecting public safety, with knock on effect on the Commonwealth and State investigative and intelligence gathering work, and to national security.
[6]Cf DPP v Dale (2010) 30 VR 282, 292 [43] (Beach J) (‘Dale’).
Proleptically, the Chief Commissioner sought to deal with various reports in the media in which it has variously been suggested or asserted that Mr Acquaro was a police informer. The Chief Commissioner submitted that it was not to the point that media reports have referred to Mr Acquaro as a police informer:
Those reports do not rise above the level of gossip, speculation and/or conjecture. It is another thing for Victoria Police to in any way confirm or deny these. At no stage has Victoria Police in any way publicly confirmed or denied the accuracy of these rumours. This is the policy of Victoria Police in all such matters as confirming or denying has its own dangers both for the person/s suspected of being police informers and also for investigative methods of Victoria Police and other law enforcement agencies generally. Victoria Police’s method of not confirming or denying is general policy adopted by all Australian law enforcement agencies. Disclosure and publication of [the material sought to be suppressed] would reveal that Mr Acquaro was, indeed, covertly providing information to Victoria Police, despite not [being] accepted for registration as a human source by Victoria Police.
The reason for what was described as ‘the stringency of Victoria Police of neither confirming nor denying the existence of human sources’ was said to be:
If Victoria Police were to publicly deny that any person was a human source that would suggest, in any situation involving another person where Victoria Police declined to comment, that the person was a human source. That would create a significant risk to the safety of that person regardless of whether they were, in fact, a human source.
While the form of orders sought, and later proposed, by the Chief Commissioner appeared on their face to have some width, in oral argument counsel for the Chief Commissioner made clear that what was sought to be prohibited from disclosure was any suggestion that police had confirmed that Mr Acquaro was a police informer. Thus, in the Chief Commissioner’s reply submissions, there was the following exchange between senior counsel for the Chief Commissioner and the bench:
COUNSEL:- - - and I may not have been clear, the order that is sought is simply over the fact that the deceased was a police informer. No more, no less. And the way it manifests itself in a trial, in a practical way, Your Honour, is if, for example, the accused or any witness stands there and says ‘I know that Mr Acquaro was an informer and he had many enemies because of that fact, and they have killed him’, etc, etc. None of that will be the subject of suppression orders, because that's the witnesses speculating or giving their point of view in the course of the trial. And they're at liberty to do that.
The only thing that is suppressed is the police documents recording the contact, and any police officer who’s asked a question which will draw the answer ‘Yes’ to the question ‘Was he an informer or not?’ So in practical terms, the order will only be triggered and will target primarily any police officers and at this point in time, there is one, the informant, and the police documents themselves recording the contact. So to alleviate Your Honour's concern that it might be a wild order operating in an unruly way, attaching to all sorts of evidence, everybody can speculate all they can, they can all - - -
HIS HONOUR: So there would be no problem with the defence response to trial getting up and saying ‘Look, here’s how we undermine all of the positive case put against us, and now let me tell you why it wasn’t my client. The evidence, members of the jury, will be that this man was a police informer, and he informed on some very serious and very bad people named A, B and C, and I will invite you at the end of this case to say on the whole of that evidence, you must have a doubt about whether it was my client or A, B and C’. Not suppressed? No problem about any of that?
COUNSEL:That’s correct, Your Honour, because Your Honour's order - - -
HIS HONOUR: It’s only if he was to go on and say ‘And you will be told by Sergeant X that he is a police informer’, you would say ‘Uh-uh, suppress that bit’?
COUNSEL: That’s correct, Your Honour.
Finally, while the original form of order sought a prohibition against disclosure of the relevant material until the death of the six people said to be at risk who I have already identified, ultimately the Chief Commissioner sought an order that would remain in place until 2 December 2120 (a little shy of 101 years).
The amici curiae
The amici characterised the Chief Commissioner’s application as seeking to suppress from wider publication two facts as follows:
(a) Mr Acquaro ‘was a police “informant” (in the casual sense of the term)’ (‘the status fact’); and
(b) the Chief Commissioner, in confirming the very existence of and producing the disclosed documents, has confirmed the status fact (‘the confirmation fact’).
The amici submitted that neither of the grounds relied upon by the Chief Commissioner (the safety issue and the chilling effect issue) were made out.
As to the safety issue, the amici characterised the Chief Commissioner’s evidence as containing ‘assertions’. It was submitted that it was difficult to assess whether or not these assertions were based on fact, personal opinion or speculation. The one example given, on behalf of the Chief Commissioner, of a murder committed many years ago was submitted not to be analogous to the present case. The amici also highlighted that the Chief Commissioner’s evidence did not disclose any information or evidence of any actual threat made against any of the individuals who the Chief Commissioner seeks to protect.
Additionally, in assessing the asserted risk of harm said to be caused by the disclosure of the relevant material, the amici submitted that the Court should consider the extent to which the information sought to be suppressed is already known. The amici contended that the status fact has been widely reported in the media as a matter of known fact — not merely speculation. Thus, it was submitted that any order would likely be ineffective — if not inutile.
With further reference to the undesirability of the Court making orders that might be ineffective or inutile, the amici said:
There is also the potential that some individuals to whom the status and confirmation facts are disclosed during court proceedings may not be minded to be scrupulous in their observation of court orders.
As to the Chief Commissioner’s chilling effect contentions, the amici contended that the Chief Commissioner’s case hinged on a proposition that has not been established: namely that, even after an informer’s death, there will be a risk of retribution to his or her family and associates. What was said by Brooking J[7] in Jarvie v Magistrates’ Court of Victoria,[8] about the need to protect witnesses was submitted, by the amici, to be limited to a need to protect living witnesses.[9]
[7]With whom Southwell and Teague JJ agreed.
[8][1995] 1 VR 84 (‘Jarvie’).
[9]But cf Chief Commissioner of Police v Herald and Weekly Times Ltd (2010) 30 VR 296, 301 [16] (Beach J) (‘CCP v HWT’).
The amici accepted that while there is a significant public interest to be protected by the making of non-publication orders where an informer is living and it is proposed that he or she give evidence, that was not this case. They submitted:
There is a significant public interest in the circumstances of [Mr Acquaro’s death], and the nature and extent to which he, as a practising solicitor, in this State or otherwise, was cooperating with police, being made known to the community during the accused’s criminal trial for murder. That public interest in exposure to public and professional scrutiny goes to the heart of the rationale underpinning the open justice principle. Openness promotes transparency and confidence in the administration of justice and avoids misinformation.
It should immediately be observed that, during argument in this Court, there was no suggestion that Mr Acquaro breached any professional duty he may have owed to any person in his communications with the police. To the contrary, senior counsel for the Chief Commissioner was emphatic in denying any suggestion that Mr Acquaro breached any duty or obligation he owed as a solicitor to any client or former client. Moreover, notwithstanding the existence of media speculation about whether there were parallels between Mr Acquaro’s conduct and that of Lawyer X, the evidence relied upon in this application did not disclose any basis upon which it might be said that Mr Acquaro breached any of his professional duties in his communications with police.
Should a non-publication order be made?
Currently, by virtue of s 4 of the Act, in determining whether to make a suppression order, there is a presumption in favour of disclosure of information to which the Court must have regard. The definition of ‘suppression order’ extends to orders made in the inherent jurisdiction of the Court.[10]
[10]AB v CD [2019] VSCA 28, [65] (‘AB v CD — CoA 2019’).
From 7 February 2020,[11] s 4 of the Act will require a court or tribunal to have regard to the primacy of the principle of open justice and the free communication and disclosure of information in determining whether to make a suppression order, and a suppression order will only be made if the specific circumstances of the case make it necessary to override or displace that principle and matter.[12]
[11]Or earlier by proclamation.
[12]See ss 2 and 5 of the Open Courts and Other Acts Amendment Act 2019 (‘the 2019 Act’).
The Chief Commissioner’s application is, of course, required to be dealt with in accordance with the provisions of the Act as they currently stand. I will, however, say something at the conclusion of these reasons about the operation of the amendments made to the Act, by the 2019 Act, which are due to come into operation on 7 February 2020.
A number of other preliminary matters should now be stated. First, as was accepted by the Chief Commissioner, his application requires the undertaking of a balancing exercise which has regard, not only to the presumption currently found in s 4 of the Act, but also to the proper administration of justice and the risks to the safety of the six people identified by the Chief Commissioner.[13]
[13]AB v CD — CoA 2019 [66].
Secondly, s 18(1) of the Act empowers this Court to make a non-publication order of the kind sought by the Chief Commissioner only if the order is ‘necessary’ to effect one of the purposes set out in the section. In the present case, the order can only be made if it is ‘necessary to prevent a real and substantial risk of prejudice to the proper administration of justice that cannot be prevented by other reasonably available means’ or ‘necessary to protect the safety of any person’. As has been said many times before, the word ‘necessary’ imposes a high standard of satisfaction. It is not satisfied by merely establishing that it would be reasonable to make an order for one of the purposes identified in the Act.[14]
[14]DPP (Cth) v Brady (2015) 252 A Crim R 50, 60 [59] (Hollingworth J); AB v CD — CoA 2019 [2019] VSCA 28, [68].
Thirdly, in their submissions, the amici identified, by reference to considerations of the kind specific to Lawyer X’s conduct,[15] a number of public interest considerations which they submitted told against the making of any non-publication order in the present case. It must, however, immediately be observed that the evidence in the present application does not suggest that Mr Acquaro behaved in any way like Lawyer X or engaged in any of the egregious breaches of duty identified by the High Court in AB v CD — HCA 2018.
[15]AB v CD [2018] HCA 58, [10] (‘AB v CD — HCA 2018’).
Accordingly, the present case falls to be determined along more conventional lines wherein, on ordinary principles, identification of a person as a police informer is (as it has been for more than 200 years) protected against disclosure[16] — rather than it being determined by reference to those principles and what the Court of Appeal described as the ‘powerful countervailing considerations’ it identified in AB v CD — CoA 2019.[17]
Section 18(1)(a) of the Act
[16]R v Hardy (1794) 24 State Tr 199, 816; Attorney-General v Briant (1846) 15 M & W 169, 184–5 per Pollock CB; D v National Society for the Prevention of Cruelty to Children [1978] AC 171, 218; Royal Women’s Hospital v Medical Practitioners Board of Victoria (2006) 15 VR 22, 34 [50] (Maxwell P) and 46 [102] (Charles JA); Chairperson of the Royal Commission into the Management of Police Informants v Chief Commissioner of Victoria Police [2019] VSCA 154, [94] (Whelan, Beach and Weinberg JJA).
[17][2019] VSCA 28, [78].
In argument, there was some debate about the feasibility of conducting the accused’s trial if, every time the fact that Mr Acquaro was or might have been an informer was mentioned, the court had to be cleared and the trial proceed in camera. Senior Counsel for the Chief Commissioner accepted that if this was the effect of the order she sought, then ‘the balance would fall in favour of an open court’.[18] While the Chief Commissioner accepted that the balancing exercise required by s 18 of the Act would not favour the making of a proceeding suppression order if to do so would result in a trial being constantly interrupted, the Chief Commissioner’s position was that the proceeding suppression order now sought[19] would not involve any such inconvenience.
[18]T 15.19–.21.
[19]See [16] above.
Having regard to the limited order the Chief Commissioner now seeks, I am persuaded that a proceeding suppression order should be made on the grounds specified in s 18(1)(a) of the Act. I accept that the disclosure of the fact that Victoria Police have confirmed that Mr Acquaro was in fact an informer would constitute a substantial risk of prejudice to the proper administration of justice. Such a disclosure would carry with it the real risk of compromising the ability of the police to obtain information from potential informers (the chilling effect issue).
The evidence discloses that it is of critical importance that informers, who might be at risk of serious injury or death if it is known that they are informers, who come forward be assured that their identity and the fact of their informing will not be disclosed. Such a person who observes the disclosure of the identity of another informer (or confirmation by police of the fact of that person’s informing) may not come forward for fear that his or her own identity might similarly be disclosed after informing.[20]
[20]See, in a slightly different context, Dale (2010) 30 VR 282, 292 [43].
Moreover, the force of this consideration is not diminished by the death of an informer. The protection from disclosure of the identity of an informer (or the fact of informing) after the death of an informer protects that person’s family. People who might inform, but who think that their identities and the fact of their informing might be disclosed by police after their death, might be more reluctant to come forward for fear of retribution against their families.[21]
[21]Again in a slightly different context, see CCP v HWT (2010) 30 VR 296, 301 [16].
Finally, so far as s 18(1)(a) of the Act is concerned, I accept the Chief Commissioner’s submission that the fact that there has been media speculation and reporting that Mr Acquaro was a police informer is not determinative against the granting of the limited order that I propose to make. In my view, there is utility in prohibiting the disclosure of any confirmation by police that Mr Acquaro was a police informer — whatever might be the state of media speculation and reporting concerning that issue. In substance, I agree with the Chief Commissioner’s submissions that it is of importance generally that police not be seen to have either confirmed or denied that a particular person is or was an informer. A different result may have been achieved, however, if there was any evidence (which there is not in this case) that Mr Acquaro had breached his professional obligations in a like manner to that of Lawyer X.
Accordingly, pursuant to s 18(1)(a) of the Act, there will be a proceeding suppression order prohibiting the publication of documents produced by the Chief Commissioner, and any evidence given by police witnesses (currently believed in this case only to be the informant) confirming that Mr Acquaro was a police informer.
Section 18(1)(c) of the Act
Having accepted that a proceeding suppression order should be made on the grounds specified in s 18(1)(a) of the Act, it is strictly not necessary to consider the other bases upon which the Chief Commissioner relied (save perhaps when considering the duration of any order to be made). I can thus express my conclusions in respect of the Chief Commissioner’s other bases in short compass.
The extent of the risk to the six people identified by the Chief Commissioner of publication of the fact that police have confirmed that Mr Acquaro was an informer involves, to some extent, an element of speculation. This is particularly so in circumstances where those who might want to do Mr Acquaro’s family harm will have their own views and beliefs on whether Mr Acquaro was or was not an informer, and have the capacity to act accordingly.
As to the safety risks identified by the Chief Commissioner, Mr Acquaro is now dead. There is no evidence of any threat having been made against any of the people identified by the Chief Commissioner. The connection that two of Mr Acquaro’s sons have with people who might otherwise be willing to do Mr Acquaro’s family harm suggests, notwithstanding the arguments advanced on behalf of the Chief Commissioner, that there is little (if any) prospect of harm being done to them by, or on behalf of, the people identified by the Chief Commissioner. Similarly, the evidence of risk to Mr Acquaro’s estranged former de facto partner and her children is not persuasive.
The Commissioner has not established that the order he seeks is necessary to protect the safety of any person.
Inherent jurisdiction
For the reasons given above, and on the basis identified in relation to s 18(1)(a) of the Act, the Commissioner is also entitled to the order that will be granted under the court’s inherent jurisdiction. It is not necessary to say anything further about the issue of inherent jurisdiction.
Duration of the order
The Chief Commissioner submitted that the proceeding suppression order he sought should remain in place for a little over 100 years. I reject that submission. Section 12(4) of the Act requires the court to ensure that a suppression order operates for no longer than is reasonably necessary to achieve the purpose for which it is made. An order lasting more than 100 years would be contrary to s 12(4) of the Act.
Having considered all of the Chief Commissioner’s evidence, I am of the view that the order that will be made should remain in force for ten years. One simply cannot know whether it is or will be necessary for the order to remain in force beyond that time. That is a matter that can be examined when the order, if not varied in the interim,[22] is about to expire.
The 2019 Act
[22]See s 15(3) of the Act.
Insofar as the Chief Commissioner’s application was based upon the provisions of the Act, I have determined it on the provisions currently in force — noting that the 2019 Act amends the Act as from 7 February 2020. The order I will make, however, will remain in force after 7 February 2020 and so it is necessary to see whether that order will remain justifiable (necessary) after the amendments contained in the 2019 Act come into force.
The amendments made by the 2019 Act are plainly designed to tighten and make more rigorous the provisions permitting a court to make suppression orders. Having considered the amendments, I am satisfied that the order I propose to make is justifiable by reference to the Act as it will be in force from 7 February 2020. Specifically, having regard to the primacy of the principle of open justice and the free communication and disclosure of information, I am satisfied that it is appropriate to make the order that I have foreshadowed will be made.[23]
[23]See ss 2 and 5 of the 2019 Act.
Should a closed court order be made?
As part of his application, the Chief Commissioner also sought an order that would require the court to be closed during those parts of the accused’s trial where material the subject of any proceeding suppression order was being referred to or discussed. In argument, it was envisaged that this would involve the closure of the court during that part of the informant’s evidence relevant to the fact of Mr Acquaro having been an informer and during any part of the trial where the documents produced by the Chief Commissioner were tendered or referred to.
Plainly, that part of the trial involving the disclosure of material that will be the subject of a non-publication order should be held in camera. I am not persuaded, however, that it is appropriate for me to make a closed court order at this stage. That will be a matter for the judge who presides over the accused’s trial. The question of whether any, and what, part of the accused’s trial is held in camera will, of course, be governed by the provisions of the Act as in force at the time of trial[24] and by reference to the non-publication order then in force.
[24]Post the commencement of the 2019 Act.
Conclusion
There will be a proceeding suppression order prohibiting the disclosure, by publication or otherwise, of the documents produced by the Chief Commissioner, and any evidence given by a police witness about whether Mr Acquaro was in fact a police informer.[25]
[25]On 1 February 2021, the proceeding suppression order made in accordance with these reasons was revoked by consent of the parties, and these reasons, which had been restricted, were made unrestricted.
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