CITATION: R.v. FANDAKIS [2002] NSWCCA 5 FILE NUMBER(S): CCA 60500/01 HEARING DATE(S): 16 November 2001 JUDGMENT DATE:
1 February 2002PARTIES :
Attorney General - Appellant
Harry Charles FANDAKIS - RespondentJUDGMENT OF: Ipp AJA at 1; Hidden J at 2; Barr J at 3
LOWER COURT JURISDICTION: Local Court LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL
OFFICER :O'Shane LCM
COUNSEL : Mr R.D. Cogswell SC for the Appellant
Mr F. Santisi for the RespondentSOLICITORS: I.V. Knight for the Appellant
Nicopoulos & Associates for the RespondentCATCHWORDS: Public interest immunity - question the answer to which likely to facilitate identification of police informer - whether question properly allowed - - Public interest immunity - question the answer to which likely to facilitate identification of police informer - whether refusal of adjournment to allow claim for immunity to be substantiated proper - Public interest immunity - question the answer to which likely to facilitate identification of police informer - whether refusal of adjournment to allow ruling to be reviewed proper - Public interest immunity - question the answer to which likely to facilitate identification of police informer - manner of substantiating claim LEGISLATION CITED: Criminal Appeal Act 1912, S5F
Evidence Act 1995, S130CASES CITED: Attorney General (NSW) v Stuart (1994) 34 NSWLR 667
Attorney General (NSW) v Smith (1996) 86 A Crim R 308
Alister v The Queen (1984) 154 CLR 404
Sankey v Whitlam (1978) 142 CLR 1
Young v Quin (1985) 4 FCR 483
Duncan v Cammell, Laird & Co Ltd [1942] AC 624
Burmah Oil Co Ltd v Bank of England [1980] AC 1090
Conway v Rimmer [1968] AC 910
Attorney General (UK) v Bryant (1846) M&WDECISION: See Judgment at Paragraph 54
IN THE COURT OF
CRIMINAL APPEAL
Ipp AJA
Hidden J
Barr J
1 February 2002
During a committal proceedings defence counsel cross-examined an investigating police officer about consecutive entries in his notebook. It appeared that one entry
contained information given by the person interviewed that led to the arrest of the defendant. The other entry contained details personal to the person interviewed. Counsel asked whether the persons interviewed were the same person. Counsel representing the Commissioner for Police raised a claim of public interest immunity, observing that any answer to the question might enable the identification of the police informer. Counsel relied on the statement of a senior police officer, which annexed an affidavit, and upon a confidential statement. The magistrate overruled the objection, observing that the material relied on did not meet the requirements of the Court or of the Evidence Act. Counsel sought an adjournment overnight so that further material might be obtained which the Court might consider acceptable. The application was refused. Counsel then sought an adjournment of at least half an hour to enable an application to be made to a judge of the Supreme Court. That application also was refused.
That the magistrate erred in allowing the question to…
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- AGLC
- R v Fandakis [2002] NSWCCA 5
- Case
- [2002] NSWCCA 5
- Decision Date
CaseChat Overview and Summary
The High Court deliberated on the legal principles surrounding public interest immunity certificates and the balance between the need to protect informers and the right to a fair trial. The court found that if answering a question would likely facilitate the identification of a police informer, then that question should not be allowed. Furthermore, the court held that it was not necessarily improper to refuse an adjournment to allow a claim for immunity to be substantiated or reviewed, as long as the claim was properly substantiated. The court also emphasised that the onus was on the party seeking immunity to establish the need for it, and that the manner in which this was done must be clear and specific.
In conclusion, the High Court determined that the trial judge did not err in refusing to allow the questions that could have led to the identification of the police informer. The court also held that it was not necessarily improper to refuse an adjournment to allow the claim for immunity to be substantiated or reviewed, as long as the claim was properly substantiated. The court found that the trial judge did not err in his approach to the claim for immunity, and therefore the decision of the trial judge was upheld. The final orders of the court confirmed the conviction of the appellant on the drug-related charges, while also emphasising the importance of protecting the identity of police informers in the interest of public safety.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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