R v Eastman
[2015] ACTSC 97
•16 April 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Eastman |
Citation: | [2015] ACTSC 97 |
Hearing Date(s): | 16 April 2015 |
DecisionDate: | 16 April 2015 |
Before: | Whealy AJ |
Decision: | Application granted |
Category: | Interlocutory application |
Catchwords: | PROCEDURE – production and inspection of subpoenaed documents – grounds for resisting production – public interest immunity – protection of police informer – public interest generally |
Legislation Cited: | Crimes Act 1900 (ACT), s 428 Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 111 |
Cases Cited: | Alister v The Queen (1984) 154 CLR 404 Attorney-General v Stuart (1994) 34 NSWLR 667 Beneficial Finance Corporation Limited v Commissioner of the AFP (1991) 52 A Crim R 423 Cain v Glass (No 2) (1985) 3 NSWLR 230 Carroll v The Attorney-General (1994) 70 A Crim R 162 Conway v Rimmer (1968) AC 910 D v National Society for the Prevention of Cruelty to Children [1978] AC 171 Jacobson v Rogers (1995) 182 CLR 572 Sankey v Whitlam (1978) 142 CLR 1 Marinovich v DPP & Anor (1987) 14 ALD R v Richardson (1863) 3 F&F 693; 176 ER 318 R v Saleam (No 2) (1999) NSWCCA 86 R v Smith (1996) 86 A Crim R 308 Young v Quinn (1985) 4 FCR 483 |
Parties: | Australian Federal Police (First applicant) Chief Commissioner of Victorian Police (Second applicant) David Harold Eastman (Respondent) |
Representation: | Counsel Mr A. Berger (First applicant) Mr R. Gipp (Second applicant) Mr C. Boyce S.C. with Ms L. Line (Respondent) |
| Solicitors ACT Government Solicitor (First applicant) Victorian Government Solicitor’s Office (Second applicant) ACT Legal Aid (Respondent) | |
File Number(s): | SCC 111 of 1992 |
Whealy AJ:
On 16 April 2015, I made orders concerning public interest immunity claims made in relation to two subpoenas issued by Mr Eastman. These are my reasons for the making of those orders.
Two separate applications were made involving claims for public interest immunity. Although they were separate, there is, as will be seen, a clear link between them. It was accordingly appropriate to deal with them together.
The subpoenas were issued in connection with Mr Eastman’s forthcoming trial. Mr Eastman faces a charge that he murdered Colin Winchester on 10 January 1989. Mr Boyce SC who appeared with Ms Line for Mr Eastman asserted that the material was relevant as likely to assist Mr Eastman in the preparation of his defence. The first subpoena (exhibit A1) was addressed to the Chief Commissioner of the Victorian Police Force. It sought production of the following material:
1. Documents and/or things connected with information received by Victorian Police concerning an admission by a person other than David Harold Eastman to the killing of Colin Stanley Winchester.
2. Victorian Police Information Report sent on or about June 2013 to the Australian Federal Police, regarding a source conversation concerning the killing of Colin Stanley Winchester.
The second subpoena (exhibit A) was addressed to the Australian Federal Police (‘AFP’). It sought production of:
1. All documents referred to at line 45267 of the spreadsheet produced to the Board of Inquiry in relation to the Inquiry into the Conviction of 3 November 1995 of David Harold Eastman for the Murder of Colin Stanley Winchester, pursuant to AFP subpoena dated 12 August 2013 (“Victoria Police Information Report received 5 June 2013 re. source conversation with person who admitted killing Winchester”)
2. All material concerning the investigation of the above information.
Background
In view of the nature of the public interest immunity claims and their extreme sensitivity, it is necessary that my introductory remarks be circumspect. Mr Eastman was, as I have said, convicted of the murder of Mr Winchester and in 1995 sentenced to life imprisonment. As a consequence of an Inquiry under s 428 of the Crimes Act 1900 (ACT) constituted by Acting Justice Martin, the Full Court of the ACT, having received the Martin Report, set aside Mr Eastman’s conviction and on 22 August 2014 ordered a new trial. Mr Eastman has been on conditional liberty since the quashing order was made.
One matter which emerged from the Martin Report was the possibility that a person other than Mr Eastman, and unconnected with him, may have committed the murder. The documents and material sought in the subpoenas bear upon the circumstances in which a certain witness provided information to the police to suggest that another person may have been the murderer. The witness has been referred to in the material placed before me as ‘Witness A’.
Material relevant to Witness A’s situation first came to the attention of the Victorian Police and then was forwarded to the AFP who made their own enquiries. Hence, two separate subpoenas were issued, one to each authority. In answer to the Victorian Police subpoena, the Victorian Government Solicitor’s Office arranged for the delivery of certain documents in a sealed envelope. These were received by the Court and marked ‘strictly confidential’. Access has been restricted to the Judge allocated to hear the public interest immunity claim.
On the hearing of the claim, Mr Gipp of counsel appeared for the Victorian Police to prosecute his client’s claim for public interest immunity. He provided the Court with the confidential affidavit of Detective Sergeant Guy Irvine (MFI 2). In general terms, the public interest immunity claim centred upon the need to protect the identity and whereabouts of a police informer. However, the risk to Witness A extended beyond the Eastman matter to other matters as well. In addition, a third category of material in the produced documents was said to be totally irrelevant to the Eastman matter.
In relation to the AFP position, the AFP produced the documents sought by the subpoena. They were produced, however, in redacted form to protect the identity of the informant and other matters relevant to that process of identification. The AFP also proposed confidentiality undertakings to allow Mr Eastman, the legal representatives for Mr Eastman and the Crown to inspect the redacted material. Such undertakings were not given by Mr Eastman or his legal representatives, although I have not been informed why this was so.
The AFP’s claim for public interest immunity relates to documents identified by it and, more particularly, described in a confidential affidavit of Assistant Commissioner Kevin Zuccato (MFI 2). This officer also provided a general affidavit (Exhibit B). Assistant Commissioner Zuccato stated at paragraph 4:
The claims and directions the AFP seeks fall into three categories: The AFP:
(a)claims PII in relation to certain information relating to ‘Witness A’;
(b)seeks non-disclosure directions in relation to the remainder of the information relating to ‘Witness A’; and
(c)seeks non-disclosure directions with respect to other documents indentified in my confidential affidavit.
Similarly to the situation with the Victorian Police, the AFP sought that the confidential affidavit and documents associated with it not be exhibited, copied, reproduced or recorded in any way. They asked that material be returned at the conclusion of the hearing of the public interest immunity claim.
The material in the general affidavit, when read with the confidential affidavit, posits a powerful case for protection of the material the subject of the public interest immunity claim. The primary basis is the protection of Witness A but Assistant Commissioner Zuccato makes it clear in his general affidavit that the claim extends beyond this and goes to the very heart of the methods by which the AFP seeks to obtain information from members of the public in relation to criminal activities. At paragraphs 24 - 27, Assistant Commissioner Zuccato says:
24. It is extremely difficult for law enforcement to infiltrate organised criminal groups as they conduct their operations according to a strict code of secrecy. Members of these groups who breach this code may be exposed to severe punishment. If the nature and extent of the co-operation of a person who is providing information confidentially to police was not protected, the willingness of people to supply such information to police would be adversely affected.
25. If people who provide information confidentially to police feel inhibited in assisting police by providing information about serious criminal allegations, it would seriously hamper the AFP in its work and would result in many allegations not being properly investigated. This in turn would tend to lower public confidence in and the effectiveness of the AFP and other police forces in Australia. I therefore believe that there is a strong public interest in maintain [sic] confidence in assurances given to those who assist police with the investigation of crime.
26. Organised criminal groups are aware of the extent to which law enforcement agencies rely on confidential sources of information in detecting illegal activity and are prepared to take extreme steps to intimidate those who might be inclined to provide information or assistance to law enforcement agencies.
27. Italian organised crime groups, including those operating in Australia have codes of behaviour that can lead to severe physical punishment (including death) for those who are prepared to give information about their activities. I believe that if the people who have provided information confidentially to police in this matter were identified, there is a significant risk of harm occurring to these people, their property or family.
The AFP sought non-disclosure directions over all documents and information relating to Witness A. They pointed out that if some or all of this information were to reach the person who Witness A has provided information about to police, that person and his or her associates might be able to draw reliable inferences about the identify of Witness A. The AFP sought non-disclosure directions to reduce the risk of this occurring for the reasons provided in the confidential affidavit.
The general affidavit continues at paragraphs 30 and following:
30. However, the AFP is very conscious of the desirability of as much information about this issue being available to the parties to these proceedings, and their representatives, as possible and, after careful consideration, has concluded that a limited disclosure, subject to strict conditions, to the people identified as ‘nominated persons’ in the AFP’s proposed non-disclosure directions would not create an unacceptable risk to Witness A or the public interest more generally.
31. Secondly, the AFP is seeking to protect other people who have provided statements and assistance to the AFP with current investigations relevant to information provided by Witness A. These people have provided information that is both personal to, and critical of a particular person. Consequently, if this information was to reach that person or his/her associates it may cause them to react adversely and cause harm to the individuals who provided this information. The AFP seeks non-disclosure directions to reduce the risk of this occurring. Further information about this is provided in my confidential affidavit.
32. However, the AFP has also concluded that, on balance, a limited disclosure of this information, subject to strict conditions, would not create an unacceptable risk to those persons or the public interest more generally.
There is a final category of evidence which is said to be totally irrelevant to the Eastman case, the production of which would be an unnecessary and improper invasion of the privacy of those persons who have no real connection with the Eastman case.
At the hearing of the claim, Mr Berger of counsel appeared for the AFP and made submissions, both oral and in writing, in support of the AFP’s claim for public interest immunity.
Principles to be applied
The claim for public interest immunity is to be determined by reference to well established common law principles. Those principles may be succinctly stated. Production will not be required of documents, although relevant and otherwise admissible, if it would be injurious to the public interest to disclose them: Sankey v Whitlam (1978) 142 CLR 1 at 38 per Gibbs CJ. Put another way, the relevant question is:
...would the public interest be best served and least injured...by compelling or by refusing to compel disclosure to the Court of the information and of the documents sought by the subpoena? (Alister v The Queen (1984) 154 CLR 404 at 453 per Brennan J.)
In both of these cases it was recognised that, when such an issue arises, the Court is required to consider two conflicting aspects of public interest, those being harm done by the production of the documents as against a consideration of the fair and efficient administration of justice: See Alister at 412 per Gibbs CJ.
Public interest immunity is but one form of valid objection to production of documents pursuant to subpoena (Attorney-General v Stuart (1994) 34 NSWLR 667 at 672E; Alister v The Queen at 404). In an appropriate case the Court may take an informal "peek" at the documents without their being formally produced (Conway v Rimmer (1968) AC 910 at 971, 979, 995; Attorney-General v Stuart at 672D). Indeed, in Alister's case, the High Court examined the documents for itself prior to deciding that they should not be produced.
Public interest immunity is a doctrine of substantive law and represents a fundamental immunity (Jacobson v Rogers (1995) 182 CLR 572 at 588-589). It allows for the withholding of documents in a variety of circumstances where disclosure of the documents would harm the public interest. As indicated above, the balancing process requires that the public interest in confidentiality must be weighed against the public interest in disclosure.
There are a number of well-recognised categories of public interest immunity. However, the categories of public interest immunity are not closed and must alter from time to time, whether by restriction or by extension as social conditions and social legislation develop (D v National Society for the Prevention of Cruelty to Children [1978] AC 171 at 230; see also Sankey v Whitlam at 39). Categories of public interest immunity include Cabinet documents and other State papers; documents the production of which would hinder or affect proper policing (Young v Quinn (1985) 4 FCR 483 at 494 and 495); documents the production of which would hinder ongoing police investigations (Young v Quinn; Marinovich v DPP & Anor (1987) 14 ALD per Foster J at 315; Beneficial Finance Corporation Limited v Commissioner of the AFP (1991) 52 A Crim R 423 per Wilcox J; Attorney-General v Stuart per Hunt CJ at CL at 680-681; and per Smart J at 690E); and, finally, there may be mentioned as a common category the protection of police informers (Cain v Glass(No 2) (1985) 3 NSWLR 230 at 233-234; Attorney-General v Stuart at 679G; R v Smith (1996) 86 A Crim R 308 at 311-312). The present claims fall into this important category.
There are further categories of public interest beyond those I have set out above. These include aspects of national security, international affairs and interstate relations. They include information about police internal investigations, information obtained generally in confidence, and commercially sensitive information. There is no need for me to list the authorities in support of these and other categories not mentioned in this brief outline.
Where, however, a public interest immunity claim is raised in relation to documents called for by a subpoena, it is still necessary for the Court or tribunal hearing the claim to follow the three stage process spoken of in the various authorities to which I have referred. First, there is the ascertainment of the legitimate forensic purpose; secondly, there is the establishment of the claim of immunity; and finally, there is the third step in the process, namely the balancing exercise.
Resolution
First, I was satisfied that each subpoena represents an endeavour to fulfil a legitimate forensic purpose. There was no submission made to the contrary. In the forthcoming trial of Mr Eastman (if it is permitted to proceed), an important matter will be the hypothesis that a person completely unconnected to Mr Eastman killed Mr Winchester. The material sought to be protected by the public interest immunity claim bears upon this issue. It includes, as might be expected, the identity and whereabouts of Witness A and the identity of other persons who have given information to the police.
Secondly, I was satisfied that the public interest immunity claim relied on both by the Victorian Police and the AFP had been clearly made good. The confidential affidavit of Assistant Commissioner Zuccato made it abundantly clear that the disclosure of Witness A’s identity raised a real possibility that the witness could be faced with serious and dangerous retribution. Victoria Police’s confidential affidavit made it plain that Witness A could be seriously in danger from persons other than those connected with the Eastman trial. These dangers, far from fanciful, are real and compelling. Similarly, the disclosure of the identity of the other persons who have given information to the police is likely to lead directly to the identification of Witness A. I should say that both Detective Sergeant Irvine and Assistant Commissioner Zuccato have, in the material provided to me, established their standing, extensive experience and seniority. These are important matters because police officers of such eminence and experience are able to inform the Court of the realities of police investigation and the dangers to informants which may not be otherwise apparent.
Thirdly, so far as it may be necessary to do so, I was satisfied that the balancing exercise of the competing claims, essentially for the reasons I have mentioned, must result in the protection of the identity of Witness A and the other persons I have mentioned. I am satisfied that this is the result required at this stage. It may be necessary, of course, to revisit the issue at trial, if a trial is to occur. The claims for public interest immunity are presently being dealt with at common law. At the trial, s 130 of the Evidence Act 2011 (ACT) will need to be addressed if the same or a similar issue arises.
I should add that there were other compelling public interest reasons why the balance fell where it did. These are considerations which usually arise when a claim is made opposing disclosure based on the need to conceal the identity of police informers. The material in the affidavits showed clearly that there was a general need to encourage informers to come forward and there was a very considerable public interest importance in not discouraging their continued cooperation. This has been recognised in all the authorities as an important aspect of an overarching public interest, namely the maintenance of social harmony and order.
In addition to these general matters, there were as well practical reasons why at this point in the proceedings determination was made. First, Witness A – clearly the critical witness for the Defence purpose – appears on the witness list for trial. That is, to put it plainly, it is the Crown intention to call that person as a witness. Secondly, a witness statement for Witness A has been provided to the Defence. Thirdly, the AFP suggestion that certain materials would be produced with accompanying non-disclosure conditions will assist the Defence case without endangering Witness A. Fourthly, the Crown, it appears, has accepted that it will be required, in the discharge of its onus of proof, to rebut the hypothesis that a person other than Mr Eastman planned and carried out the murder.
There is a body of law which suggests that, in the case of police informers, “the balance has already been struck”. In other words, there is no need for the court to undertake, for itself afresh, a balancing exercise weighing one interest against another. Generally, the identity of police informers will be protected from disclosure: D v National Society for the Prevention of Cruelty to Children at 218; Attorney-General v Stuart at 679-680; and Cain v Glass No. 2 at 246-247.
There is, however, an exception in criminal cases to the “exalted position” of the police informer: disclosure of the identity of an informer will be ordered when required to establish the innocence of an accused person: D v National Society for the Prevention of Cruelty to Children at 498, 500; Cain v Glass No. 2 at 246 - 247; Attorney-General v Stuart at 674 - 675; R v Richardson (1863) 3 F & F 693; 176 ER 318.
I am satisfied that, at this point, the “exception” has no application. This is partly because of the practical matters to which I have made reference. However, a further important point (unlike the situation in R v Richardson) is that Witness A’s evidence is exculpatory not inculpatory of Mr Eastman. As presently minded, I would consider that the identity of Witness A (and the other persons) is neither relevant nor admissible in itself. That situation may conceivably change at trial, although it is unlikely.
In relation to the non-disclosure directions, I am satisfied that directions as postulated should be made. Those orders were made pursuant to s 111 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT). I was satisfied that the provisions of the statute were clearly met.
Mr Boyce asked me to take into account one aspect that he submitted was important in relation to the public interest immunity claim. He said that if the Crown were to attack the reliability of Witness A, this would leave his client in a difficult position. He said this was so because Witness A would presumably give evidence, if permitted, in a protected fashion, perhaps from a remote location and by pseudonym, etc. Whether those situations would arise is completely speculative at this stage. I am not satisfied that the consideration urged by Mr Boyce requires the rejection of the public interest immunity claims or the result of the balancing exercise I have undertaken. If the trial proceeds, and should the witness be required to give evidence in a protected fashion, I am confident that, with the assistance of counsel, satisfactory directions could be given to the jury to ensure that the protective mantle worn by the witness would not be seen as an indicator of unreliability or lead to an inference that the witness was to be regarded unfavourably.
Orders
For these reasons, on 16 April 2015 I made the following orders:
1. In relation to subpoena 28873 addressed to the AFP:
(a) Until further of the Court (which shall not be made without first hearing from a representative of the Australian Federal Police) the Commissioner of the Australian Federal Police’s claims for public interest immunity in relation to the information identified in Exhibit KZ1 of the confidential affidavit sworn by Assistant Commissioner Zuccato on 16 April 2015 are upheld.
(b) Until further order of the Court (which shall not be made without first hearing from a representative of the Australian Federal Police) inspection of the material identified by the words ‘objection to inspection’ in the index to Exhibit KZ1 of the confidential affidavit sworn by Assistant Commissioner Zuccato shall not be permitted.
(c) Until further order of the Court (which shall not be made without first hearing from a representative of the Australian Federal Police), the information contained in the documents identified in Annexure A and B of the short minutes of order that were handed up shall not be disclosed to any person who is not a nominated representative listed in order 1(e) below (‘Nominated Representative’).
(d) Until further order of the Court (which shall not be made without first hearing from a representative of the Australian Federal Police) the material identified as Annexure A and B shall:
(i) only be accessed and viewed by a Nominated Representative at the Office of the Director of Public Prosecutions or the Legal Aid ACT Office;
(ii) when not being accessed and viewed, be kept in a B grade safe whose combination is known only to, and which can only be opened by, a Nominated Representative; and
(iii) subject to order 1(f), not be copied or reproduced in any way.
(e) For the purposes of orders 1(c) and (d), the following people only are a Nominated Representative:
- Chris Boyce – counsel
- Mark Griffin – counsel
- Lucy Line – counsel
- John Boersig – solicitor
- Michael Toole – solicitor
- Paige Durham – paralegal employed at Legal Aid ACT
- Jack Lin – paralegal employed at Legal Aid ACT
- Terrence O’Donnell – consultant
- David Eastman
- Murugan Thangaraj – counsel
- Peggy Dwyer – counsel
- Jon White – ACT Director of Public Prosecutions
- Keegan Lee – Prosecutor
- Laura Keys – Prosecutor
(f) Order 1(d) does not preclude a Nominated Representative from inspecting or copying the material identified at Annexure A at the ACT Supreme Court Registry, but any copied material shall then be treated in accordance with orders 1(c) and (d)(i) and (ii).
(g) Orders 1(a) – (e) shall not preclude the use of redacted versions of the documents referred to in those orders in any application by Mr Eastman for a stay or in the trial of Mr Eastman for the murder of Colin Stanley Winchester provided reasonable prior notice of the intention to use such a document, and when it is intended to seek to use it, is given to the legal representative of the police force whose document(s) is intended to be used.
2. In relation to subpoena 28796 addressed to the Chief Commissioner of Victoria Police:
(a) There shall be no access to the redacted portions of the documents produced to the Court by the Chief Commissioner of Police (Victoria) pursuant to the subpoena to produce documents first returnable on 19 March 2015 on the basis of public interest immunity.
(b) The documents produced to the Court on 19 March 2015 and 16 April 2015 and the confidential affidavit of Detective Sergeant Guy Irvine sworn 15 April 2015 be returned to the Chief Commissioner of Police (Victoria).
(c) The Chief Commissioner of Police (Victoria) will provide forthwith copies of the documents referred to in order 2(a) above with the approved redactions for public interest immunity to the Director of Public Prosecutions, legal representatives of David Harold Eastman and the Court.
| I certify that the preceding 34 numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Whealy Associate: E. Sutton Date: 24 April 2015 |
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