R v Eastman (No 18)
[2017] ACTSC 180
•26 July 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Eastman (No 18) |
Citation: | [2017] ACTSC 180 |
Hearing Date: | 3 July 2017 |
DecisionDate: | 26 July 2017 |
Before: | Kellam AJ |
Decision: | See [15]-[19] |
Catchwords: | CRIMINAL LAW - JURISDICTION, PRACTICE AND |
Legislation Cited: | Evidence Act 2011 (ACT) s 130 |
Cases Cited: | Attorney-General v Kaddour [2001] NSWCCA 456 D v National Society for the Prevention of Cruelty to Children [1978] AC 171 Sankey v Whitlam (1978) 142 CLR 1 |
Parties: |
The Queen (First Respondent) David Harold Eastman (Second Respondent) |
Representation: | Counsel Ms G Mahony (Applicant) Ms M Campbell & Mr K Lee (First Respondent) Ms L Line (Second Respondent) |
| Solicitors NSW Crown Solicitors Office (Applicant) DPP (First Respondent) ACT Legal Aid Office (Second Respondent) | |
File Number(s): | SCC 111 of 1992 |
KELLAM AJ:
Re Public Interest Immunity claim by New South Wales Police
On 27 March 2017 I heard an application by the NSW Commissioner of Police (the Commissioner) to set aside a subpoena numbered S/29939. On 31 March 2017, I ordered (R v Eastman(No 14) [2017] ACTSC 66) that paragraph 2 of the schedule to the subpoena be set aside, but otherwise ordered that there be compliance with the subpoena. I further ordered that the return date for production of documents pursuant to the subpoena was to be 20 April 2017. That return date has been extended on a number of occasions.
The schedule to the subpoena requires production of the following documents:
1. The New South Wales Police criminal record for [redacted];
2. (As stated above, Paragraph 2 was set aside by me.)
3. Documents referring to the involvement of [redacted] in the activities of the Italian organised crime group known as ‘Ndrangeta between 1980 and 1990.
4. Documents referring to the association of [redacted] between 1980 and 1990 with individuals who were recorded as being members or suspected members of the Italian organised crime group known as ‘Ndrangeta.
5. Documents referring to contact between [redacted] and individuals with the family name [redacted], including but not limited [redacted] and [redacted].’
On 28 June 2017 I granted leave to the Commissioner to file and serve open submissions and an open affidavit in support of an application to be heard on 3 July 2017 seeking orders that certain documents in response to the subpoena not be produced, on the grounds of public interest immunity (PII), and that one document described as the State Intelligence Group Document, be produced in redacted form. In addition at the hearing of the application on 3 July 2017 I granted leave to the Commissioner to file in court a sealed envelope containing a confidential affidavit (the confidential affidavit).
Pursuant to the orders referred to in the preceding paragraph an open affidavit and a confidential affidavit, each sworn by Acting Assistant Commissioner John Kerlatec on 27 June 2017, were filed. The affidavits depose that the Commissioner:-
a.has nothing to produce in response to paragraph 1 of the schedule to the subpoena.
b.Searches conducted by New South Wales police disclosed the existence of three documents that fell within the terms of paragraphs 3, 4 and 5 of the schedule to the subpoena:
i.One of those documents (the ASC Information document) is to be produced without objection.
ii.Another of the documents (the ABCI profile document) has been referred to the Australian Criminal Intelligence Commission (ACIC) to consider and will be produced subject to any objections by ACIC.
iii.The third document is the document referred to above as being the State Intelligence Group Document which the Commissioner seeks to produce in redacted form.
c.In addition, the open affidavit refers to a document described as CNI733460602 which is said to relate to [redacted] and, in turn, comprises a compilation of three (3) separate entries in the’ New South Wales Police Computerised Operational Data base (the ‘COPS system’). Those entries are said to be Case Report C27135689, Information Report I27418081 and Information Report I30787023. The Commissioner claims public interest immunity (PII) over each of those latter documents.
State Intelligence Group document
I have read the State Intelligence Group document in redacted and unredacted form. The parties have had the opportunity to read that document in redacted form. I have also read the three documents referred to in CNI 73346062 and which are annexed to the confidential affidavit of Assistant Commissioner Kerlatec.
It is appropriate to observe that in his open affidavit Assistant Commissioner Kerlatec did not set out the basis of the PII claim over the documents in question, but rather stated at [15] that the basis upon which he claimed PII ‘cannot be disclosed in this open affidavit’. He stated that the specific harm that would arise from such disclosure is ‘detailed in the confidential affidavit’. In the course of her oral submissions counsel for the Commissioner, Ms Mahony, referred to three bases upon which a PII claim might be made, being protection of police informants, protection of police methodology and disclosure of ongoing police investigations.
The principles relating to a claim for PII are well established at common law and to a substantial degree are restated by s 130 of the Evidence Act 2011 (ACT) (the ‘Act’) with respect to adducing information or a document into evidence, and by s 131A of the Act, which, amongst other things, enables resistance to a ‘disclosure requirement’ obliged by a subpoena to produce documents. As the Court of Appeal said in Eastman v DPP [No 13] [2016] ACTCA 65 at [206] the critical concept of balance referred to in such cases as Jarvie v Magistrates Court of Victoria (1995) 1 VR 84 and R v Meissner (1994) 76 A Crim R 81, is now adopted explicitly by s 130 of the Act.
As Sully J stated in Attorney-General v Kaddour [2001] NSWCCA 456 what is required is ‘a precise and careful striking of a precise and prescribed statutory balance’ in circumstances such as those before me.
In that regard I am at a loss to understand why the Assistant Commissioner was unable to identify with more precision the basis of the claim for PII in the open affidavit. A reading of paragraphs 10, 11 and 12 of his confidential affidavit does reveal that his concerns about the redacted parts of the State Intelligence Group document are based upon one of the well-recognised bases referred to by Ms Mahony. Likewise, the confidential affidavit reveals his concerns that the three documents referred to in CNI73346062 are related to at least two of such bases. I do not understand why that could not have been explained in discreet language in the open affidavit. The failure to do so leaves counsel for the prosecution and for the accused in an invidious position in terms of the submissions they can make to the Court.
Mason J in Sankey v Whitlam (1978) 142 CLR 1 at 96 said ‘An affidavit claiming Crown privilege should state with precision the grounds on which it is contended that documents or information should not be disclosed so as to enable the court to evaluate the competing interests.’ I consider that where possible those grounds should be stated in both the open and confidential affidavits and can see no reason why that could not have been done here.
Documents in CNI733460602
That said, and with one exception, which I discuss further below, I am satisfied that in relation to the documents comprised in CNI733460602 the balance is in favour of upholding the claim for PII. There are several aspects as to why it is that the balance falls that way. First, and most significantly, the documents bear no relationship to the issue of whether or not [redacted] was involved with the murder of Assistant Commissioner Winchester, or whether he took the rifle which was allegedly used to murder him to Victoria. The documents are not relevant to, nor could their contents be admissible in the proceedings in any way. I cannot see how the release of the documents ‘could help to show that the defendant was innocent of the offence’, to use the words of Lord Diplock in D v National Society for the Prevention of Cruelty to Children [1978] AC 171 at 218. Furthermore I am satisfied that disclosure of such a document would at the minimum risk exposure of a confidential source of information and has the potential to prejudice the future investigation of an offence. Although these latter matters can be stated only in terms of risk, they are relevant in the balance, particularly taking into account the irrelevance to the issues in the proceeding, and the inadmissibility of the contents of the documents.(see the Act s130 (5)(a)).
Document I27418081
As stated in the preceding paragraph, I consider that there is one exception to my conclusion that the documents contained in CNI733460602, which is included in Annexure B to the confidential affidavit, should not be released by reason of PII. That exception relates to document I27418081. I consider that parts of that document can be produced without revealing the identity of a confidential source or revealing anything about police operations or investigations. In my view disclosure of the heading of document I27418081 from the top of page 1 down to and including the word “coordinator” is not subject to the immunity claimed. In addition the words from and including ‘caller states’ appearing five lines from the bottom of the first page of that document down to and including the second bracket appearing in the third last line of that page may be disclosed without causing the harm which is the concern of Assistant Commissioner Kerlatec.
Returning to the State Intelligence Group document, as stated above no PII claim is made by the Commissioner in relation to the substance of the document. However, a claim has been made in relation to a small number of redactions. In relation to the claim which has been made, I am required to consider under s 130(4) of the Act whether or not the information would disclose or enable a person to ascertain the existence or identity of a confidential source of information. It is clear enough that the redacted information would reveal that a confidential source existed (or at least did so some 25 years ago), but then so does the un-redacted information contained in the document. However, the circumstances set out in the confidential affidavit do not satisfy me that the redacted material would reveal the identity of a confidential source. Indeed it appears to me that the content of the un-redacted material, which counsel for the Commissioner argued had been produced pursuant to the principle of open justice, is in fact more likely to do that than the redacted material. Put another way, if a person with knowledge of the matters contained in the un-redacted parts of the document was to have access to it, that person may be able to make an informed guess as to the source of the information. That circumstance calls for orders to be made restricting the disclosure and management of the document, a matter which I raised with counsel for the Commissioner in the course of the hearing of the application. Accordingly I propose to make orders that the un-redacted copy of the State Intelligence Group document be produced by the Commissioner.
There is a further matter which I consider to be relevant in relation to the State Intelligence Group document. In my view there is no reason why the information generally contained in paragraphs 10 and 11 of the confidential affidavit of Assistant Commissioner Kerlatec, should not be divulged to the parties. I do not propose to make any order in that regard, but it is a matter that should be considered by the Commissioner.
Orders
In respect of the document entitled ‘State Intelligence Group’:
(a)that the document be produced in un-redacted form at or by 10 am on Tuesday 15 August 2017;
(b)that access to the document be restricted to the parties and to their legal representatives;
(c)that any copy of the document held by a party be stored securely by that party’s legal representatives in a B–grade safe at the premises of the Office of the Director of Public Prosecutions or at the offices of Legal Aid ACT;
(d)that copies of the document be made only for the purposes of the retrial, and any application or appeal associated with the retrial, of the accused for the murder of Colin Stanley Winchester (the ‘retrial proceedings’) and that all copies be returned to the Commissioner of NSW police at the conclusion of the retrial proceedings or any application or appeal related to the retrial proceedings.
That:
(a)the document numbered I27418081, being one of the documents comprised in CNI733460602, be produced at or by 10 am on Tuesday 15 August 2017 so that all parts of the document other than:
(i)the heading of the document down to and including the word ‘coordinator’ on page 1;
(ii)the words from ‘Caller states’ appearing five lines from the bottom of page 1 to and including the second bracket appearing in the third line from the bottom on page 1;
be redacted (the ‘redacted copy of I733460602’);
(b)access to the redacted copy of I733460602 be restricted to the parties and their legal representatives;
(c)any copy of the redacted copy of I733460602 held by a party be stored securely by that party’s legal representatives in a B–grade safe at the premises of the Office of the Director of Public Prosecutions or at the offices of Legal Aid ACT;
(d)copies of the redacted copy of I733460602 can be made only for the purposes of the retrial proceedings, and any application or appeal associated with the retrial proceedings, and that all copies be returned to the Commissioner of NSW police at the conclusion of the retrial proceedings, or any application or appeal related to the outcome of the retrial proceedings.
That subject to the preceding orders in relation to the subpoena S/29939 the claim for public interest immunity made by the Commissioner of NSW police in respect of the documents contained in the document referred to as CNI733460602 is otherwise upheld pursuant to Part 3.10 of the Evidence Act 2011 (ACT).
Until further or other order the reasons for this judgment are not to be published other than to the parties to this application.
That there be liberty to apply.
| I certify that the preceding nineteen [19] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Kellam. Associate: Date: 26 July 2017 |
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