Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: R v Krivosic (No. 1) [2021] NSWSC 1501 Hearing dates: 17 November 2021 Date of orders: 17 November 2021 Decision date: 17 November 2021 Jurisdiction: Common Law - Criminal Before: Johnson J Decision: An order is made pursuant to ss.130(1) and 131A Evidence Act 1995 excusing the New South Wales Commissioner of Police from producing documents in response to the subpoena issued on behalf of the Accused on 12 November 2021 on the basis of public interest immunity.
Catchwords: CRIMINAL LAW – murder trial – subpoena issued by defence – application to be excused from production of documents on ground of public interest immunity – claim for public interest immunity upheld
Legislation Cited: Evidence Act 1995
Cases Cited: Attorney General (NSW) v Kaddour and Turkmani [2001] NSWCCA 456
Attorney General (NSW) v Lipton (2012) 224 A Crim R 177; [2012] NSWCCA 156
Cain v Glass (No 2) (1985) 3 NSWLR 230
Director of Public Prosecutions v Smith (1996) 86 A Crim R 308
Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532; [2008] HCA 4
R v Francis (2004) 145 A Crim R 233; [2004] NSWCCA 85
R v Meissner (1994) 76 A Crim R 81
State of New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60
Texts Cited: ---
Category: Procedural rulings Parties: Regina (Crown)
Marko Krivosic (Accused)Representation: Counsel:
Solicitors:
Ms M England; Mr BG Page (Crown)
Mr N Steel (Accused)
Mr DK Jordan (New South Wales Commissioner of Police)
Solicitor for Public Prosecutions (NSW) (Crown)
Jamieson Criminal Law (Accused)
Crown Solicitor’s Office (New South Wales Commissioner of Police)
File Number(s): 2018/228553 Publication restriction: ---
Judgment
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JOHNSON J: By Notice of Motion dated 16 November 2021, the New South Wales Commissioner of Police (“the Commissioner”) seeks orders pursuant to ss.130(1) and 131A Evidence Act 1995, that the Commissioner be excused from producing documents, or parts thereof, in response to a subpoena issued on behalf of the Accused on 12 November 2021 on the basis of public interest immunity or, alternatively, on the basis of the common law principles of public interest immunity.
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The Accused, Marko Krivosic, is standing trial on a charge of murder, with that trial having commenced with the empanelment of a jury on Monday, 15 November 2021.
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In support of the claim for public interest immunity made by the Commissioner, the Court has been provided with an open affidavit of Assistant Commissioner Stacey Maloney dated 16 November 2021. The Court has had regard to that affidavit which is available to the legal representatives for the Crown and the Accused.
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In the open affidavit of Assistant Commissioner Maloney, reference is made to confidential Exhibit SM1 and confidential Exhibit SM2. The Court has been provided with confidential Exhibits SM1 and SM2 and has examined them in accordance with the usual practice where a claim of this type is made.
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In addition, Assistant Commissioner Maloney has sworn a…
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- AGLC
- R v Krivosic (No. 1) [2021] NSWSC 1501
- Case
- [2021] NSWSC 1501
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the documents in question were subject to public interest immunity and thus exempt from disclosure. Krivosic argued that the documents contained sensitive information that, if disclosed, would undermine the integrity and effectiveness of law enforcement and national security operations. The Crown, on the other hand, contended that the documents were relevant to the defence's case and should be disclosed to ensure a fair trial.
The court, in considering the application, applied the principles of public interest immunity, which are rooted in the balance between the public interest in the administration of justice and the public interest in maintaining confidentiality. The court found that the documents contained information of a highly sensitive nature that, if disclosed, would cause significant harm to ongoing operations and the safety of individuals. The court determined that the public interest in maintaining the confidentiality of these documents outweighed the need for their disclosure in this particular case. Consequently, the claim for public interest immunity was upheld.
As a result of the court's decision, the subpoenaed documents were not required to be produced. This ruling underscores the court's commitment to safeguarding sensitive information that is critical to public safety and national security, while also ensuring that the administration of justice is not unduly compromised.
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
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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