R v Desatge; R v Dawita

[2024] QSCPR 19

SUPREME COURT OF QUEENSLAND

CITATION:	R v Desatge; R v Dawita [2024] QSCPR 19
PARTIES:	THE KING
v
DESATGE, Tane Saul
THE KING
v
DAWITA, Sinitta Tammy
FILE NO/S:	Indictment No 95 of 2023
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING	Supreme Court at Toowoomba
COURT:
DELIVERED ON:	24 July 2024
DELIVERED AT:	Toowoomba
HEARING DATE:	22 July 2024
JUDGE:	Cooper J

ORDER: 

1.

The publication by print or electronic means to any person, other than the parties and their legal representatives, and judicial or other officers of the Court of the following material is prohibited:

a.	The evidence, including the recordings tendered during their evidence-in-chief and the cross- examination, of [REDACTED], insofar as it pertains to any details of the [REDACTED] which constitute the police undercover methodology used in the investigation of this matter or pertains to the use of the [REDACTED] as an investigative tool by police agencies;
b.	Details of the [REDACTED] comprising such

methodology referred to above and given in

evidence by the witnesses;

c.	Any addresses or submissions made by counsel and remarks of the presiding judge insofar as they reveal any detail of the police undercover methodology;
d.	The fact of the use of the [REDACTED]
technique as an investigative tool by Queensland and interstate police agencies;
e.	Details as to the identity of police covert

operatives unless and until the identity of police covert operatives are disclosed in evidence led or tendered in open court in the trial of this matter; and

f. The orders and the reasons for judgment of the Court delivered on 22 July 2024.

2.   Paragraphs 1 and 2 of this order will have effect

until further order by a judge of the Supreme Court
of Queensland.

3.   The parties have liberty to apply to the Court for

variation of this order.

CATCHWORDS:	CRIMINAL LAW – PROCEDURE – MISCELLANEOUS POWERS OF COURTS AND JUDGES – SUPPRESSION ORDERS – where the co-accused Dawita and Desatge are
charged with the torture, murder, and interfering with the
corpse of their child and stepchild, respectively – where a
certain covert investigative technique was used by the police to obtain alleged admissions from the accused Desatge as to
the circumstances of the child’s death and the alleged burial of
her body by the co-accused – where the prosecution seek a
non-publication order in relation to that covert technique and the identities of the undercover police officers involved in
executing it – where the defendants do not oppose the application but one media organisation does – where
publication of information about the investigative technique carries the risk that ongoing or future investigations using that
technique may be compromised – where the publication of the
identities of the undercover operatives involved in the investigation may compromise their safety or compromise ongoing investigations in which those operatives are involved
– whether a non-publication order in relation to the
investigative technique and the identity of the undercover operatives involved in it should be made
Commissioner of Police New South Wales v Nationwide News
Pty Ltd (2007) 70 NSWLR 643, cited
John Fairfax Group Ltd v Local Court of New South Wales
(1991) 26 NSWLR 131, cited
John Fairfax & Sons Ltd v Police Tribunal of New South
Wales (1986) 5 NSWLR 465, cited
COUNSEL:	MB Lehane with NE Friedewald for the Prosecution F Martin for the Defendant, Tane Saul Desatge
DP Jones KC for the Defendant, Sinitta Tammy Dawita
D Chen for the Australian Broadcasting Corporation
SOLICITORS:	Office of the Director of Public Prosecutions (Qld) for the Prosecution Skuse Graham Criminal Lawyers for the Defendant, Tane Saul Desatge Legal Aid Queensland for the Defendant, Sinitta Tammy
Dawita

1. The defendants, Tane Saul Desatge and Sinitta Tammy Dawita are charged on

   indictment with four offences, including the torture and murder of Ms Dawita’s

   daughter, Kaydence Hazel Mills.

2. On the first day of the trial, the prosecution applied for orders suppressing publication of the evidence of some prosecution witnesses. The evidence concerns aspects of the police investigation which led to the arrest of the defendants and the identity of a number of undercover operatives involved in that investigation.

3. The prosecution relies on the inherent jurisdiction of this Court to make appropriate orders where it is necessary to do so to secure the proper administration of justice.

4. The basis for the application is to prevent disclosure to the public of detailed information about a particular technique used in the undercover police investigation of the defendants. Insofar as the application seeks to suppress the identity of undercover operatives it also raises consideration of the safety of those persons.

5. The defendants do not oppose the application.

6. When the application was made, brief submissions were made on behalf of the Australian Broadcasting Corporation (ABC) in opposition to the making of the non- publication orders.

7. After hearing those submissions, I made orders in the form sought by the prosecution and indicated that I would provide written reasons later. These are my reasons for making the orders.

8. The fundamental rule in considering applications of this type is that the administration of justice must take place in open court. That principle requires that nothing should be done to discourage the making of fair and accurate reports of what occurs in the courtroom.[1]

   [1]            John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465, 476–477.

9. Nevertheless, this Court has the power, in appropriate cases, to make orders preventing the publication of what takes place during proceedings. Such orders should only be made if it is necessary to secure the proper administration of justice in the proceeding before the Court.[2]

   [2]            John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465, 477.

10. Public interest immunity considerations may lead to orders of the type sought by this application. Furthermore, the integrity of police investigations and the safety of persons involved with them are matters capable of attracting a claim for public interest immunity that could justify the making of orders of the type which the prosecution seeks, albeit that such claims to public interest immunity require close judicial scrutiny. The power may also be exercised to suppress the further dissemination of information that may already have been disclosed in the public domain to some degree.[3]

    [3]            Commissioner of Police New South Wales v Nationwide News Pty Ltd (2007) 70 NSWLR 643, 648- 649 [32]-[43].

11. The requirement that orders of the type sought here are necessary to secure the proper administration of justice does not mean that the applicant for the orders must demonstrate that the proceedings will be unable to continue if the orders are not made. Rather, the requirement will be met where, if the kind of order proposed is not made,

    the result will be – or will be assumed to be – that particular consequences will follow

    and those consequences are unacceptable. The power of the Court to make orders which will prevent those unacceptable consequences is to be characterised as necessary to the proper function of the Court.[4]

    [4]            John Fairfax Group Ltd v Local Court of New South Wales (1991) 26 NSWLR 131, 161.

12. I am satisfied that the public dissemination of information relating to evidence attracting public interest immunity would be an unacceptable consequence of the administration of justice if the Court is able to prevent it by exercising the power to make the proposed orders but refrains from doing so.[5]

    [5]            Commissioner of Police New South Wales v Nationwide News Pty Ltd (2007) 70 NSWLR 643, 649 [40].

13. I turn then to consider the basis for seeking to invoke the power of the Court to make the proposed orders in the circumstances of this case.

14. The prosecution relies in part on some alleged admissions made by the defendant Mr Desatge to undercover police operatives. [REDACTED].

15. The prosecution relied on an affidavit sworn by Geoffrey Stephen Marsh, Detective Chief Inspector, who is in charge of the Covert and Surveillance Operations Unit of the Queensland Police Service (QPS).

16. DCI Marsh deposes that the covert action commenced in January 2020 and concluded with the arrest of the defendants on 1 March 2020. He says that, where practicable, all contact between QPS undercover operatives and Mr Desatge was recorded by audio device and, where possible, visual recordings.

17. DCI Marsh refers to the investigative strategy [REDACTED]. It is an investigative strategy which often requires the ability to utilise interstate agencies, as interstate undercover operatives might have to be deployed in multiple States during the course of an investigation.

18. The affidavit raises three bases for the orders sought.

19. First, DCI Marsh deposes to an expectation that, if evidence about the investigative strategy is not suppressed, media outlets will report on the particular techniques used in the investigation of the defendants at a national level. This has the potential to detrimentally affect other ongoing investigations which are employing similar techniques.

20. It is said that if a person who is the subject of an investigation using the [REDACTED] strategy sees a media report which identifies the investigation method, then it would be easy for that person to identify that they are the target of this type of investigation strategy. It also has the potential for targets of such investigations to undertake activities designed to thwart ongoing investigations into their activities.

21. Enquiries were conducted in July 2024 with law enforcement agencies in Australia and New Zealand capable of using the [REDACTED] investigation method. [REDACTED]. Some of those investigations are said to be at a critical juncture and compromise of the use of the [REDACTED] strategy would be severely detrimental to those investigations.

22. [REDACTED].

23. Enquiries with other Australian jurisdictions indicate that there has been no recent reporting of the technique by the media in those jurisdictions.

24. The second reason provided by DCI Marsh is that reporting of details of the [REDACTED] method would severely impact the usefulness of this investigation

    strategy in the future. This is primarily because of DCI Marsh’s expectation that, if

    such details are reported in connection with this case, interstate police agencies would in all likelihood be reluctant to work with the QPS on future investigations. I have already referred to the way in which the effectiveness of the strategy depends on the

    QPS’ ability to utilise the resources of interstate police agencies.

25. The third reason provided by DCI Marsh is that the publication of the identity of an undercover operative or information which might lead to the discovery of the

    operative’s identity has the potential to compromise the personal safety of that covert

    operative as well as their family and other associates. This would include the publication of a photograph, sketch, or other visual image of an undercover operative who is called as a witness. Identification might also compromise other ongoing investigations in which the covert operative is presently involved.

26. The basis for the ABC’s opposition to the making of the non-publication orders is

    that the investigative technique which is to be the subject of evidence is already well- known [REDACTED]. It was also submitted that the proposed non-publication orders would restrict the reporting of the trial and, consequently, would conflict with the principle of open justice. This second submission can be accepted, but it does not address the question of the countervailing public interest in preventing publication.

27. It is also clear from DCI Marsh’s affidavit that information about the [REDACTED]

    strategy has been published previously. That does not mean, however, that non- publication orders are not necessary to maintain the continuing effectiveness of the technique as a tool of law enforcement. [REDACTED].

28. [REDACTED].

29. I accept DCI Marsh’s evidence as to the use of the [REDACTED] strategy in current

    investigations and the risks which would arise if details of the strategy are widely publicised, those risks being to the integrity of current investigations and to the future effectiveness of the strategy as a tool of law enforcement.

30. I am satisfied that there is a public interest in preserving the usefulness of this investigation strategy, both in terms of investigations which are presently underway and the ability to employ the strategy effectively in future investigations.

31. I am further satisfied that there is a public interest in avoiding the identification of the undercover operatives involved in the covert investigation in this case and the risk such identification would pose to the safety of those persons and their families, as well as to the integrity of other covert investigations in which those operatives are currently engaged.

32. In my view, the evidence of DCI Marsh provides a sufficient basis to conclude that publication of the matters sought to be made the subject of the non-publication orders would be harmful to this public interest. That would be an unacceptable consequence which would result from a refusal to make the orders which the prosecution has sought. I am satisfied that, in that sense, the orders are necessary to secure the proper administration of justice within the meaning described by the authorities I have referred to above. Those considerations warrant a departure from the fundamental principle referred to at [8] above.