R v Katherine John

[2020] NSWLC 2

Local Court

New South Wales

Medium Neutral Citation:

R v Katherine John [2020] NSWLC 2

Hearing dates:

15 April 2020

Date of orders:

2 July 2020

Decision date:

02 July 2020

Jurisdiction:

Criminal

Before:

Magistrate Donnelly

Decision:

Application to revoke certificate issued under clause 14(1) refused and dismissed.

Catchwords:

CRIMINAL PROCDURE – search warrants – Law Enforcement (Powers and Responsibilities) Regulation 2016 – clause 14 (1) certificate issued by Registrar - certified records not available for inspection by occupier – application to revoke the certificate – whether certificate should be revoked on the basis disclosure of documents is not likely to jeopardise any person’s safety or seriously compromise the investigation of any matter – jurisdiction – “eligible issuing officer” – public interest immunity – matters of state

Legislation Cited:

Evidence Act 1995 s 130

Law Enforcement (Powers and Responsibilities) Act 2002 s 3

Law Enforcement (Powers and Responsibilities) Regulation 2016 cll 13, 14

Cases Cited:

Chief Constable of the Greater Manchester Police vMcNally [2002] EWCA Civ 14

D v National Society for the Prevention of Cruelty to Children [1978] AC 171

HT v Queen [2019] HCA 40

Marks v. Beyfus (1890) 25 QBD 494

Sankey v Whitlam (1978) 142 CLR 1

R v Ohar [2004] NSWCCA 83; (2004) 59 NSWLR 596 R v Young [1999] NSWCCA 166;(1999) 107 A Crim R 1

Category:

Procedural rulings

Parties:

Prosecution: NSW Police (respondent)

Defendant: Katherine John (applicant)

Representation:

Prosecution: Sergeant Haines

Defendant: Mr Diggins

File Number(s):

2019/00049453

Publication restriction:

Nil

Judgment

1. The applicant, Katherine John, is charged with an offence of possess a prohibited drug under s 10 of the Drug Misuse and Trafficking Act 1985. She has pleaded not guilty to the offence. The defended hearing has been delayed due the COVID-19 pandemic. This is an application by the defendant under clause 14(4) of the Law Enforcement (Powers and Responsibilities) Regulation 2016 for the revocation of a certificate issued under clause 14(1). The prosecution oppose the application.

2. Clause 14 is headed “Certified records not available for inspection.” It provides:

(1)    An eligible issuing officer may at any time issue a certificate to the effect that the officer is satisfied that—

(a)  a document or part of a document referred to in clause 13 contains matter—

1. )  that could disclose a person’s identity, and

(ii)  that, if disclosed, is likely to jeopardise that or any other person’s safety, or

(b)  a document or part of a document referred to in clause 13 contains matter that, if disclosed, may seriously compromise the investigation of any matter.

(2)    The document or part of the document to which the certificate relates is not to be made available for inspection under clause 13(6) or (7).

(3)    The certificate is to be kept with the document to which it relates.

(4)    An eligible issuing officer (whether or not the one that issued the certificate) may revoke the certificate if satisfied (after consideration of submissions from any interested party) that disclosure of the matter to which it relates is no longer likely to jeopardise any person’s safety or seriously compromise the investigation of any matter.

3. Clauses 13(6) and 13(7) of the Regulation permit inspection of a document or documents by the occupier of the premises to which the warrant relates except where clause 14(2) referred to above applies.

4. The background to the application is as follows. The Registrar of the Local Court at Singleton issued a search warrant of the applicant’s premises following an application by the police. The Registrar also issued a certificate under clause 14(1) which had the effect that certified records in support of the police application as referred to in clause 13 were not available for inspection. An application was then made under clause 14(4) to revoke the certificate before a Senior Registrar of Newcastle Local Court. The application was refused on the basis that he was not satisfied of the statutory test in clause 14(4) had been met. The Senior Registrar gave reasons for decision. He decided that the issue in the case was not whether a police investigation would be compromised, but rather that the applicant’s suggestion of redacting parts of the documents not available for inspection would not alleviate the risk of jeopardising a person’s safety as described in clause 14(4).

5. The defendant then made an application for a Magistrate to make a decision under clause 14(4). The decision maker under clause 14(4) must be an “eligible issuing officer”. Section 46 Law Enforcement (Powers and Responsibilities) Act 2002 provides “eligible issuing officer” means, inter alia, “an authorised officer”. Section 3 of the Law Enforcement (Powers and Responsibilities) Act 2002 provides “authorised officer” means, inter alia: “(a) a Magistrate or a Children’s Magistrate, or (b) a registrar of the Local Court….” Clause 14(4) provides the eligible issuing officer can be a person other than the person who issued the certificate. A determination under clause 14(4) does not involve the exercise of judicial power. It is a statutory power conferred on officers of the executive and magistrates. This is not unusual since Magistrates exercise executive power in other areas of the law including committal proceedings.

Clause 14(4) and public interest immunity

6. It is instructive to place clause 14(4) in a broader legal context and to briefly explain the rationale for the issuing of certificates under clause 14(1). The bases for the issue of a certificate under clause 14(1) clearly relates to the common law doctrine of public interest immunity. Generally the doctrine protects from compulsory disclosure in court proceedings relevant evidence if its disclosure would be prejudicial or injurious to the public interest: Sankey v Whitlam (1978) 142 CLR 1 at 38 per Gibbs ACJJ. In R v Young [1999] NSWCCA 166 at [57]; (1999) 107 A Crim R 1 Spigelman CJ opined that “public interest immunity arises because of the need to safeguard the proper functioning of the executive arm of government and the public service”. See also other expositions of the rational and application for the common law doctrine in Marks v. Beyfus (1890) 25 QBD 494 per Lord Esher MR at 499, D v National Society for the Prevention of Cruelty to Children [1978] AC 171 and Chief Constable of the Greater Manchester Police v McNnally [2002] EWCA Civ 14 per Lord Justice Auld at [14]-[18].

7. In the context of criminal proceedings where public interest immunity arises, the common law has always accepted that it may apply to prevent the disclosure of information that would disclose the identity of informers or prejudice ongoing police investigations and methods of operation. The Evidence Act 1995 largely reflects the common law. Section 130 is headed “Exclusion of evidence of matters of state”. Section 130(4) provides a non-exhaustive list of information/documents which relate to matters of state. Section 130(4)(c) refers to information/documents which could “prejudice the prevention, investigation or prosecution of an offence” and s 130(4)(e) to information/documents which could “disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State”. Similarly, clause 14(4) refers to a scenario where the disclosure of “a person’s identity is likely to jeopardise that or any other person’s safety” and disclosure which “may seriously compromise the investigation of any matter”.

The nature of the decision under clause 14(4)

8. The plain meaning of the text of clause 14(4) indicates that it does not confer an appeal right. This is clear from the fact that under clause 14(4) an eligible issuing officer - whether or not the person who issued the certificate - may revoke the certificate. Justice James in R v Ohar [2004] NSWCCA 83; (2004) 59 NSWLR 596 said in the context of appeals in Drug Court matters:

I must say that I still have difficulty with the concept of an appeal in a matter dealt with under s 24(1)(b) from the Drug Court constituted by a District Court Judge to the District Court constituted by another District Court Judge. This concept strikes me as very much akin to "an appeal from Caesar to Caesar".

9. The same can be said of clause 14(4). It does not provide for an appeal from Caesar to Caesar but rather it is a provision where the original decision maker or another decision maker later in time has to be satisfied of specific statutory criteria. It would be erroneous to treat the revocation power as an appeal right in which the original decision to issue a certificate was revisited and reviewed.

Decision making process under clause 14(4)

10. The task of a decision maker under clause 14(4) is guided by the text. Parliament has used the expression “no longer likely to” in relation to the two discrete bases for issuing a certificate: “jeopardising any person’s safety” and “seriously compromise the investigation of any matter”. By the use of the expression “no longer likely to” the clause, as framed, appears to assume that the basis for the issue of the certificate under clause 14(1) is not open to challenge under clause 14(4). And it requires that the state of affairs at the time of the issue of the certificate have changed and the certificate is, in the words of clause 14(4), “no longer” required. Notwithstanding the limits of the wording, a decision under clause 14(4) does require the eligible officer making a decision under clause 14(4) to consider the factual basis and material which was relied upon when the certificate was initially issued.

11. Sergeant Haines for the prosecution submitted that the onus is on the defendant to show that circumstances have changed since the issue of the certificate. Mr Diggins for the defendant submitted that the defendant will be denied procedural fairness if the court does not permit access to the documents in support of the application for the search warrant. He submits that the certificate is too wide and the court could tailor appropriate orders which include redacting the document or documents in part. Mr Diggins relies upon the recent High Court decision of HT v Queen [2019] HCA 40.

12. However the decision of HT v Queen [2019] HCA 40 is not relevant in this case. In HT v Queen the court held that an informer was denied procedural fairness in sentencing proceedings because her lawyer was unable to make submissions as to the appropriate level of discount. The appellant’s trial counsel had no way of checking any instructions she had given about her assistance against what was in the prosecution exhibit that could not be seen: HT v Queen per Kiefel CJ, Bell and Keane JJ in a joint judgment at [25]. However, the plurality held at [30] that the doctrine of public interest immunity had no application in the specific circumstances of the case because:

“…public interest immunity is a doctrine which is concerned with the exclusion of documents from evidence”

13. Nettle and Edelman JJ said at [551]: “We also agree with their Honours regarding public interest immunity”. Ultimately the case concerned the scenario where an offender assists authorities and is denied access to all, or some, of the evidence and is unable to make submissions about a sentencing discount.

14. Strictly speaking this case is not concerned with a claim to public interest immunity or a denial of procedural fairness in sentencing proceedings. The case only concerns findings of fact about the statutory text used in clause 14(4) as I have outlined. The task of the court is to apply the clause 14(4) on its terms.

15. I have carefully reviewed the certificate issued by the eligible officer and the documents supporting the application for the search warrant which caused the certificate to be issued. The factual basis for the issue of the certificate is readily apparent – the disclosure of a matter to which it relates which is likely to jeopardise any person’s safety. In these proceedings it was accepted by the Senior Registrar in the first revocation application that the police investigation in this matter has ceased and therefore could not be a continuing justification for a certificate. The issue in this case related to the second limb in clause 14(4) - whether disclosure of the matter to which it relates is no longer likely to jeopardise any person’s safety. Since the certificate was issued no evidence has been filed or adduced which would throw light on whether the state of affairs has changed. That is, when I give meaning and effect to the expression “no longer” the applicant does not rely upon factual material which would alter the state of affairs that existed when the eligible officer issued the certificate. As I have said as a matter of statutory construction and logic clause 14(4) appears to require a change of circumstances.

16. The defendant has failed to satisfy the court that disclosure of the matter to which it relates is no longer likely to jeopardise any person’s safety. Having reviewed the documents in support of the search warrant application and the submissions of the applicant I am not satisfied that the pre-conditions for the exercise of the power of revocation under clause 14(4) has been met and would not be met by redacting part of the documents.

17. For these reasons I refuse the application by the applicant to revoke the certificate and the application is dismissed. Neither party made an application for costs and consequentially I make no order as to costs.

Magistrate Donnelly

Singleton Local Court

2 July 2020

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Decision last updated: 11 February 2021