R v Haydon (No 2) - [2005] SASC 16

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v HAYDON (No 2)
Reasons for Ruling of The Honourable Justice Sulan
21 January 2005
PROCEDURE - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - PRODUCTION AND INSPECTION - GROUNDS FOR RESISTING PRODUCTION - PUBLIC INTEREST IMMUNITY
Accused charged with two counts of murder and six counts of assisting offenders - accused issued subpoena to Commissioner of Police seeking disclosure of all records relating to whether witnesses to be called at accused's trial are registered informants - the Commissioner claimed public interest immunity - objection to disclosure on grounds of relevance - discussion of public interest immunity.
Alister v The Queen (1984) 154 CLR 404; Haydon v Magistrates Court and Rofe (2001) 87 SASR 448; Marks v Beyfus (1890) 25 QBD 494; R v Mason (2000) 77 SASR 105; R v McKelliff (2004) 87 SASR 476, considered.

R v HAYDON (No 2)
[2005] SASC 16
SULAN J
Background

The defendant, Mark Ray Haydon (“Haydon”), is charged with two counts of murder and six counts of assisting offenders. The charges arise from the discovery of eight bodies in six barrels in a bank vault in Snowtown, South Australia on 20 May 1999.Three other men were charged and convicted of a number of counts of murder arising from the discovery of the bodies. On 21 June 2001, James Spyridon Vlassakis (“Vlassakis”) pleaded guilty to four counts of murder. When the trial of John Justin Bunting (“Bunting”), Robert Joe Wagner (“Wagner”) and Haydon commenced, a number of preliminary rulings were made by the trial judge. He stayed nine counts of murder against Haydon, and ordered that Haydon be separately tried on three charges of murder, which then remained.
The trial against Bunting and Wagner for multiple counts of murder proceeded. On 8 September 2003, Bunting was convicted of eleven counts of murder and Wagner was convicted of seven counts of murder. Wagner had pleaded guilty at the commencement of the trial to three counts of murder.
Before the trial of Bunting and Wagner commenced, Vlassakis participated in two interviews with the police. Vlassakis had agreed to give evidence against Bunting, Wagner and Haydon. In his statements to the police, he inculpated each of them in various offences. During the trial of Bunting and Wagner, Vlassakis and Jodie Elliott (“Elliott”), the sister of one of the deceased, Elizabeth Haydon, gave evidence for the prosecution. The prosecution proposed to call them as witnesses in the trial of Haydon.
Solicitors for Haydon issued a subpoena to the Commissioner of Police seeking disclosure of all records relating to whether or not Vlassakis and Elliott were registered informants and, if so, for what period of time.
The claim of public interest immunity
The Commissioner claimed public interest immunity. Ms De Palma, who appeared for the Commissioner, submitted that disclosure of the information would undermine the use of informants by the South Australian Police Department and would reduce community confidence in the protection of informants. She submitted that it would have a serious effect upon the ability of police to investigate serious crimes. She relied on affidavits of Denis George Edmonds, a Detective Superintendent of Police. In an affidavit sworn on 26 May 2004, Superintendent Edmonds states that “the basis of that claim of public interest immunity is that the disclosure of whether or not a person is an informant or a registered informant would undermine the use of informants by SAPOL, reduce community confidence in the protection of informants and have the effect of depleting sources of information about serious crime”.
In a further affidavit, he deposed:
“ …
7.It is the policy of SAPOL in relation to subpoenas requesting confirmation that a person is or is not an informant or a registered informant to neither confirm nor deny whether or not that person is or is not an informant or registered informant. [At the time of writing these reasons, a portion of this affidavit was sealed.]
8.That is the policy of SAPOL because if SAPOL does not make a claim in a case where a person is not an informant, whenever SAPOL does make a public interest claim in relation to a person that is an informant, it will have the effect of confirming that that person is an informer. That is by acting differently in the alternative cases, SAPOL’s actions will disclose that the person is a registered informer.
9.It is my belief that were SAPOL or the Court to confirm or deny whether or not a person is an informant, the disclosure would undermine the use of informants by SAPOL, reduce community confidence in the protection of informants and have the effect of depleting sources of information about serious crime.
9.[sic.] That is so because informants generally assist SAPOL with the full knowledge that they face a genuine risk to their safety which may include persecution, harassment, personal injury or even death if their role as an informant becomes known.
10.It is my belief that it is the promise of confidentiality to informants which allays the fear informants may have of risks to their personal safety and in turn provides SAPOL with information it might never otherwise obtain. I would hold fears for the personal safety of many informants if the fact of their being registered informants in relation to criminal activities was revealed or could be inferred in any way.”
Submissions in answer to the claim of public interest immunity
Mr Abbott, who appeared for Haydon, submitted that both Vlassakis and Elliott were witnesses in the case and had given evidence in the Bunting and Wagner trial. It is clear from their evidence that they are informers in that they had given information to the police. Their identity was known to the world and the rationale for protecting their identity had no application in this case. He submitted that there was no ground to justify suppression of the information. He conceded that the defence was not seeking to know whether Vlassakis or Elliott were informers in respect of criminal conduct of other persons unrelated to the subject matter of the charges against Haydon. He amended the subpoena to limit the information which was sought. The amendment restricted the information to documents which related only to the subject matter of the charges. The amended subpoena sought:
“All records relating to the question of whether or not James Spyridon Vlassakis or Jodie Elliott are or were registered informants in relation to the investigation into John Justin Bunting, Robert Joe Wagner and Mark Ray Haydon culminating in any charges laid against those persons in the Supreme Court of South Australian in action No. 205/2001.”
The Commissioner did not withdraw his objection. Ms De Palma based the objection on the ground of relevance. She further argued that the fact that a person was or was not a registered informant should be protected from publication, because to disclose that fact would still have the effect of potential informers losing confidence in the confidentiality of their information and their anonymity.
Mr Abbott submitted that the information was relevant to the defence of Haydon, as it was capable of revealing what benefits, if any, Vlassakis and Elliott had received in respect of their co-operation. Further, he submitted that the fact alone that a witness is a registered informant is relevant and, at the very least, might go to the credit and credibility of that witness’ evidence.
Ms McDonald, for the Director of Public Prosecutions (“Director”) and Ms De Palma on behalf of the Commissioner, informed me that any benefits received by Vlassakis and Elliott had been disclosed to the defence. It was submitted that the Director has an ongoing duty of disclosure of any information which may be relevant to the defence, and that included details of any benefits received by or provided to Vlassakis or Elliott. Further inquiries were made from individual police officers who had had dealings with Vlassakis and Elliott. The court was informed that all relevant disclosure had been made.
Mr Abbott referred to an Informant Management Plan, a document produced by the South Australian Police for the purpose of providing a best practice system for managing relationships between informants and their police handlers. The document refers to an informant register, which is held in the State Intelligence Branch. One of the reasons for such a register is to reduce the potential for corruption and impropriety by ensuring that dealings with informers are properly recorded and supervised. The provision of rewards or benefits to an informant are monitored and scrutinised. All contact with informers is recorded and any benefits received, or promised, are documented. The document is extensive and governs how the relationship between an informant and the handler are to be conducted.
Mr Abbott submitted that the records sought, if they existed, would include details of dealings with, and benefits given to, Vlassakis or Elliott, which are required to be documented if Vlassakis or Elliott were registered informants.
Ms De Palma submitted that the information sought to be obtained had been provided by the Director and the Commissioner, and the fact of registration as an informer was not relevant or of any forensic value to the defence.
I ruled against the Commissioner’s claim of public interest immunity, and ordered the production of the records. The information was provided which revealed that neither Vlassakis nor Elliott were registered. I indicated that I would publish my reasons at the conclusion of the trial.
Public interest immunity
In determining the Commissioner’s claim for public interest immunity, the court must balance two competing interests. On the one hand, there is a public interest in protecting informants and the information that they provide. On the other hand, there is a public interest in ensuring that all relevant material is placed before the court, such that the administration of justice is not adversely affected.
The rule of law that the identity of police informers will, in most cases, not be disclosed, was discussed in the cases of Haydon v Magistrates Court and Rofe,[1] R v Mason,[2] and R v McKelliff.[3] In Haydon, Doyle CJ discussed the different approaches which have been taken in deciding whether to maintain a claim of public interest immunity in respect of the identity of an informant. It has been recognised that disclosure of the identity of an informant and communications between the police and that informant should ordinarily remain confidential. It is essential for the police to have sources of information in order to detect crime. In the main, those who provide information to police will only do so if their identity is not disclosed, and the information they provide remains confidential.
[1] (2001) 87 SASR 448
[2] (2000) 77 SASR 105
[3] (2004) 87 SASR 476
The court is required to consider the competing interest of an accused in obtaining a just result in the litigation; see Haydon at 455 per Doyle CJ. There have been different approaches in formulating the test. In Haydon, Doyle CJ said that it is for the court to perform the balancing exercise of determining whether the public interest in avoiding damage from the production of a document revealing the identity of an informant is greater than the public interest in facilitating a just result in the litigation; see page 455 [15], see also Perry J in R v McKelliff at 43 [20-23].
Perry J in McKelliff expressed the test as being that the claim for public interest immunity, when made, to protect the identity of an informant and the material he has provided, will ordinarily be displaced if the disclosure is likely to substantially assist the defendant in proving his or her innocence.
Bowen J, in Marks v Beyfus,[4] said:
“The only exception to such a rule would be upon a criminal trial, when the judge if he saw that the strict enforcement of the rule would be likely to cause a miscarriage of justice, might relax it in favorem innocentiae”.
[4] (1890) 25 QBD 494 at 500
In R v Mason, Bleby J agreed with the approach in Marks v Beyfus and said:
“Two observations need to be made about those formulations. The first is that it is not always the case that the mere identity of the informer will help to show that the defendant is innocent. In some cases it may. In many cases, however, the application of the exception arises where evidence is sought to be tendered which will affect the innocence of the accused but which incidentally but necessarily discloses the identity of an informer. In other words, it may be the information itself which will “establish the innocence”, or it may be some other information which, incidentally, will disclose the identity of the informer.
The second point to be made is that expressions like the requirement “to establish the prisoner’s innocence” as justifying the exception must be read with caution lest it be thought that the exception will apply only where the burden of proof is on the accused, and that it will not apply where the evidence may reasonably raise a reasonable doubt on the prosecution case. I would wish to make it quite clear that the exception will apply not only to establish the accused’s innocence but to cast reasonable doubt on the prosecution case.”[5]
[5]Above, note 2, at 114 [39-40]
If disclosure is likely to substantially assist the defendant in proving his innocence, then that is a compelling reason for requiring disclosure of the information. There may be other circumstances which require disclosure. For example, if the prosecution case is heavily reliant on the evidence of a person closely associated with the informant, and it is the defence case that the informant has unduly influenced the witness or has some hold over the witness who was giving false evidence to benefit the informant, then the public interest may require the disclosure of the information given and the identity of the informant. That may be the case even when there is other evidence implicating the defendant. Sometimes disclosure may be ordered to throw doubt on the prosecution case in circumstances in which it could not be said that such disclosure will necessarily prove innocence.
It was submitted that the defence case would not be substantially assisted by the provision of the information. It was submitted by Ms De Palma that all relevant disclosure had been made. In my view, that is not a complete answer. For the defendant to be told that his request will not reveal any new or relevant information, as all relevant information has been provided, may leave the defendant with a legitimate grievance as he would have been unable to test the proposition against other information which has been withheld from him. That is not to suggest that the Commissioner and the Director have not disclosed all relevant information, but it is important in the administration of justice to ensure, so far as possible, that all material which substantially may assist an accused is made available so that he can test for himself whether that has occurred. The process should, insofar as possible, be transparent. In that respect, what was said by Gibbs CJ in Alister v The Queen[6] is apposite. Gibbs CJ said:
“Just as in the balancing process the scales must swing in favour of discovery if the documents are necessary to support the defence of an accused person whose liberty is at stake in a criminal trial (see Sankey v. Whitlam (1978) 142 CLR, at pp 42, 62) so, in considering whether to inspect documents for the purpose of deciding whether they should be disclosed, the court must attach special weight to the fact that the documents may support the defence of an accused person in criminal proceedings. Although a mere “fishing” expedition can never be allowed, it may be enough that it appears to be “on the cards” that the documents will materially assist the defence. If, for example, it were known that an important witness for the Crown had given a report on the case to ASIO it would not be right to refuse disclosure simply because there were no grounds for thinking that the report could assist the accused. To refuse discovery only for that reason would leave the accused with a legitimate sense of grievance, since he would not be able to test the evidence of the witness by comparing it with the report, and would be likely to give rise to the reproach that justice had not been seen to be done.”
[6] (1984) 154 CLR 404 at 414-415
In this case, the identity of Vlassakis and Elliott were known. The information they had provided is generally known to Haydon. Statements have been provided, the witnesses have given evidence in the Bunting and Wagner trial, and many of the topics which are of interest to Haydon in this trial have been the subject of extensive evidence and of examination and cross-examination.
The argument supporting the claim by the Commissioner can be summarised as follows: “If the Commissioner gives the answers and the persons are not registered informants in this case, it will be presumed in the future that, if the Commissioner refuses to give the information, then the person is an informer”. It does not follow that, if the Commissioner decides to answer a subpoena on one occasion, any conclusion can be drawn from that decision. There is no suggestion that any undertaking was given to Vlassakis or Elliott to maintain their anonymity.
The case for maintaining privilege in the circumstances in which the information supplied by Vlassakis and Elliott is in the public arena is not compelling. I do not accept the submission that if, in this case, the subpoena were answered, that in the future when public interest immunity is claimed, one could conclude that there is information of significance being withheld.
The evidence of Vlassakis and Elliott is important evidence in the case. They have provided significant information to the police. Their credibility and the reliability of their evidence is a major issue. It is important to the defendant to have all relevant information about the background to Vlassakis agreeing to co-operate with the police. Details of his dealings with the police, including benefits he has obtained, or anticipates obtaining, is relevant to the accused’s defence, because the honesty and reliability of Vlassakis’ evidence is central to the case.
In balancing the competing interests, I considered that Haydon was entitled to the information so that he and his advisors could satisfy themselves that all steps have been taken to ensure that all benefits provided to Vlassakis and Elliott have been disclosed.
I therefore refused the claim of public interest immunity, and directed the Commissioner to comply with the subpoena.