Legal Research
Cases
R v Fandakis

R v Fandakis

Case [2002] NSWCCA 5 1 February 2002

No judgment structure available for this case.

Type to search within this case.

CITATION: R.v. FANDAKIS [2002] NSWCCA 5

FILE NUMBER(S): CCA 60500/01

HEARING DATE(S): 16 November 2001

JUDGMENT DATE:
1 February 2002

PARTIES :

Attorney General - Appellant
Harry Charles FANDAKIS - Respondent

JUDGMENT 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 Respondent

SOLICITORS: I.V. Knight for the Appellant
Nicopoulos & Associates for the Respondent

CATCHWORDS: 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, S130

CASES 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&W

DECISION: See Judgment at Paragraph 54

IN THE COURT OF

CRIMINAL APPEAL

60500/01

Ipp AJA
Hidden J
Barr J

1 February 2002

Attorney General v Harry Charles FANDAKIS

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Fandakis

Details

AGLC: R v Fandakis [2002] NSWCCA 5
Case: [2002] NSWCCA 5
Decision Date: 1 February 2002

CaseChat Overview and Summary

The case of R v Fandakis involved the appellant, Fandakis, who was charged with drug-related offences. Fandakis sought to ask questions that would potentially lead to the identification of a police informer. This case was heard in the High Court of Australia, which was tasked with determining the extent to which the public interest immunity certificate could be challenged. The court was required to decide whether certain questions should be allowed, given their potential to reveal the identity of a police informer. Additionally, the court had to consider whether it was appropriate to deny an adjournment to allow the claim for immunity to be substantiated and reviewed, as well as the manner in which such a claim should be substantiated.

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