R v Leitner No. DCCRM-96-1263 Judgment No. D3621

[1997] SADC 3621

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Ruling of His Honour Judge Robertson

Hearing

26/05/97, 29/05/97.

Catchwords

Subpoenas - production and inspection of documents - whether files subpoened by the defendant from the Police Complaints Authority regarding complaints against arresting officer should be disclosed to counsel for inspection - whether claim of public interest immunity made out - whether subpoened files contained material of "evidentiary value" - Authority to produce documents identified in Schedule.

Materials Considered

• Police (Complaints &; Disciplinary Proceedings) Act 1985, as amended , referred to.
• R v Polley (Judgment of Justice Mulligan delivered 3 April 1997; Judgment No. S6091.2);
• Hunt v Judge Russell &; De Pinto (1995) 63 SASR 402;
• Zarro v Australian Securities Commission (1992) 36 FCR 40, applied.

Representation

R:
Counsel: Mr N. Alexandrides - Solicitors: DIRECTOR OF PUBLIC PROSECUTIONS

Accused Christian LEITNER:
Counsel: Mr W. Retalic - Solicitors: MICHAEL DADDS

DCCRM-96-1263

Judgment No. D3621

3 June 1997

(Criminal)

R v LEITNER

Judge Robertson

Criminal

The accused is charged on information with one count of possessing heroin for sale contrary to s32(1)(e) of the Controlled Substances Act 1984 and a further count of taking part in the sale of heroin contrary to s32(1)(d) of the Controlled Substances Act 1984.Currently a voir dire hearing is proceeding in which the accused seeks to exclude the evidence of a hand written Record of Interview made on 29 June 1996 and a video recorded Record of Interview made on the same day.During the course of the hearing, the accused has issued and served a subpoena on the Police Complaints Authority subpoenaing files of the Police Complaints Authority ("the Authority") in which a Detective Maynard is featured.Detective Maynard has been giving evidence but has been stood down pending the outcome of the subpoena proceedings.I will return to his role in the proceedings shortly

The Authority has answered the subpoena by producing two files identified as C4248 and C1418.The Authority objects to the production of four other files identified as C7026, C5607, C6007P and C4538.In addition, the Authority objects to the production of summary sheets of files numbers 00759, 00843 and 00854.Apparently there were files identified by those three numbers but they have been destroyed.The ground of objection to the production of those four files and the summary sheets is that the Authority claims public interest immunity regarding the contents of the documents contained in each of the files and the contents of the summary sheets.

The main thrust of the Authority's submission regarding public interest immunity is that the complaints process established by the Police (Complaintsand Disciplinary Proceedings) Act 1985, as amended,("the Act") is a confidential one.Section 48 of the Act obliges prescribed officers (as defined in the Act) not to divulge any information acquired person in the course of the complaints process except as authorised by the Act.The Authority submits that disclosure of written material as a result of a subpoena will in effect undermine the integrity of the complaints process because the participants in that process may not readily involve themselves in the process if they are aware that any information or material they provide may become, as the Authority described it, "public property".The Authority also submitted that the disclosure of the material contained in the files and summary sheets, the subject of objection, would be detrimental to the effective functioning of his role for the reasons to which I have referred.

The grounds set out in the Rule 9 application upon which the accused relies for the exclusion of evidence of the two records of interview are voluntariness and unfairness.Detective Maynard interviewed the accused at the premises where the accused was arrested and recorded the interview in handwritten form. Detective Maynard further interviewed the accused at the Port Adelaide Police Station later that same day and that interview was recorded on video tape.At the time of the record of interview recorded on video tape Detective Farrington was also present.Detective Farrington has given evidence.He has also been stood down pending the resolution of the subpoena issue.

The accused alleges that an inducement was held out to him to make the statements contained in each record of interview.He asserts that the form of inducement was that he would not obtain bail on the afternoon he was arrested if he was not "forthcoming" and spoke to the police.The accused says that such an inducement has to be seen in the context that he was at the time a heroin addict and that the police had arrested his brother, who was his source of supply of heroin, on that same day.The accused claims that as a result of the inducement his statements were not made voluntarily and therefore should be excluded from evidence.

With regard to the ground of unfairness, the accused alleges that he was interviewed by Detective Maynard when at all relevant times his position was that he did not wish to be interviewed until he had received legal advice.One of the central issues regarding this part of the accused's case is a conversation which Detective Maynard has told the Court took place in the corridor of the Port Adelaide Police Station shortly before the video record of interview was to be undertaken.Detective Maynard has stated that in that conversation he said to the accused that they would get a solicitor and the accused said not to worry about solicitors.He said the accused indicated that he was prepared to be interviewed.The accused denies this conversation.The conversation which Detective Maynard says took place in the corridor was not raised during the questioning of the accused on video a short time later.

In relation to the ground of unfairness the accused further says that he was to some degree effected by heroin at the time the police arrived at the premises where he was arrested.The accused also asserts that the police did not comply with Section 74D of the Summary Offences Act 1953, as amended and other provisions of that Act.In particular, the accused asserts that the police should have informed him of his rights pursuant to s79a of the Summary OffencesAct at a time earlier than when his rights were given to him.His rights were given to him by Detective Maynard shortly after Detective Maynard informed the accused he was under arrest for possessing heroin for sale.

As I indicated earlier, Detective Maynard is under cross-examination but has been stood down until the issue of the subpoena and other matters are resolved. It is clear from the cross-examination of Detective Maynard that his credit is challenged.His credit is central to the issue regarding the conversation in the corridor of the Port Adelaide Police Station.Counsel for the accused, Mr Retalic, supports the subpoena by submitting that the material contained in the complaint files which feature Detective Maynard have a legitimate forensic purpose in the conduct of the accused's case.He has submitted that the information contained therein may not only be relevant to the credit of Detective Maynard but may also be relevant to the issues raised in the accused's application.

The Authority has made no application to strike out the subpoena as being vexatious, oppressive or an abuse of process.In fact, the Authority has answered the subpoena in respect of some of the documents held by it.However, as I indicated earlier, the objection to the production of the other documents contained in the files and the summary sheets I identified earlier is based upon a claim of public interest immunity.In addressing this issue I will also need to consider whether the documents are of evidentiary value in these proceedings (see: R v Polley - Judgment of Justice Mullighan delivered 3 April 1997; Judgment No. S6091.2 and Hunt v Judge Russell and De Pinto (1995) 63 SASR
402 at 410).

I turn now to consider the claim by the Authority for public interest immunity.Whilst counsel for the Authority eschewed any submission that the Authority claimed class immunity in relation to the documents sought by the subpoena there appeared to be a flavour of a claim of class immunity in the submissions he made and in the affidavit of Mr Wainwright in support of the claim for public interest immunity.In my view, a claim for class immunity could not succeed here (see: Polley at pages 7-8; Zarro v Australian Securities Commission (1992) 36 FCR 40 at page 46).Whilst I have some doubts whether the submission was in fact a claim for class immunity I consider that on balance the objection based upon public interest immunity does relate to the contents of the documents contained in the files and the summary sheets and I will proceed to address the issue on that basis.

Invaluable guidance can be obtained in resolving the problem from the decision of Justice Mullighan (with whom Justice Nyland agreed) in Polley.In that case, his Honour was also considering a claim of public interest immunity made by the Authority in response to a subpoena served on him by an accused person. The exercise that I am required to undertake here is one of balancing the public interest with the need by an accused for disclosure.Justice Mullighan's observations in Polley at pages 9 and 10 clearly elucidate the balancing exercise which is required in such circumstances.His Honour said at pages 9-10:-

"Of course it must be recognised that public confidence in the Police Complaints Authority, and the scheme administered by it, should be maintained. Some people with a genuine grievance may only be prepared to complain about a police officer in confidence.Others may only do so if their complaints are kept within the Authority.These considerations are not new and are a basis for well known privileges, such as the protection from disclosure of informers and the source of a police officer's information.Even accepting Mr Boyce's concerns at face value, such matters give rise to no more than the balancing exercise discussed in Sankey v Whitlam (supra) and Alister's case (supra).It is for the judge in a criminal trial to balance the two important interests: the public interest in preserving the efficacy of the system of the making and resolution of complaints against police officers and the public interest and the need for disclosure to ensure justice in an individual case.Other matters to be considered include the seriousness of the charge against the accused, the nature of the issues likely to arise at the trial, the nature of the evidential material disclosed in the documents and, in particular, whether the materials may assist in the preparation and development of the defence.Obviously, the files and records of the Authority would not be disclosed as a matter of course, but in cases involving serious charges, as is the case here, and where the documents do contain material of evidential value, it may be expected that they will be disclosed to an accused person.It is well to keep in mind the observations of Brennan J in Alister's case (supra), at p456:

'It is of the essence of a free society that a balance is struck between the security that is desirable to protect society as a whole" [the public interest relevant in that case] and the safeguards that are necessary to ensure individual liberty.But in the long run, the safety of a democracy rests upon the common commitment of its citizens to the safeguarding of each man's liberty, and the balance must tilt that way: cf Sankey v Whitlam (supra) at pp42, 61-62'."

The grounds for making the claim for public interest immunity by the Authority in this case appear to be similar to the grounds put forward by the Authority in Polley.The passage in Justice Mullighan's Judgment to which I have just referred indicates that in weighing up those grounds for the purpose of the balancing exercise I must weigh up and take into account all of the relevant matters particular to the accused including those matters identified by Justice Mullighan in that passage of his judgment.In so doing I must immediately acknowledge that the accused faces two very serious charges which attract very substantial penalties.Furthermore, it is clear from what has developed in the voir dire hearing to date that Detective Maynard's credit is a central issue. I also need to acknowledge that the documents, the subject of objection, may be relevant to the issues which are before me.

For the purpose of undertaking the balancing act to determine the outcome of the claim for public interest immunity I have inspected the documents in each of the files and the summary sheets.In so doing I need to consider whether the contents of any of the documents are of evidentiary value in relation to the issues raised in the voir dire hearing.Once again guidance regarding the meaning of the expression "evidentiary value" is found in the decision of Mullighan J in Polley.At page 2 his Honour said:-

"As a general rule an accused person in the criminal court is entitled to compel, by subpoena, the production to the Court of documents which have "evidentiary value": Alister v The Queen (1984) 154 CLR 404 per Brennan J at pp450-451 and Carter v Hayes (1994) 61 SASR 451.Indeed, in the former case, Brennan J at p451 described this right as "... so basic and important an aspect of our criminal procedure that a trial in which the right is denied cannot be, in my opinion, a trial according to law".In the latter case King CJ expressed the view that "evidentiary value" is synonymous with documents being used for a "legitimate forensic purpose", an expression used in some other cases, eg R v Saleam (1989) 16 NSWLR 14, and went on to say, at p453:

'A document may have evidential value, in my opinion, not only because it is admissible in evidence, but also, even if it is not admissible of itself, because it provides material of value for cross-examination (Maddison v Goldrich [1976] 1 NSWLR 651) or discloses 'information which may be established in some other admissible form': R v Saleam (supra)'."

In my opinion there are documents in each file except in file number 4538 the contents of which are of evidentiary value.I am also of the opinion that the contents of the three summary sheets are of evidentiary value.Having reached that conclusion I have then proceeded to undertake the balancing act required to determine the claim of public interest immunity.In my opinion, the seriousness of the charges against the accused, the issues which I have identified arise for determination in this voir dire hearing and the nature of the evidentiary value of the material contained in the documents lead me to the conclusion that the claim of public interest immunity must fail.The claim for public interest immunity is out weighed by the need for disclosure to ensure justice in the case of the accused.

In my opinion a number of the documents in files numbered C7026 and C6007P are of evidentiary value and should be produced.Those documents are identified in the Schedule I publish with these Reasons.With regard to file number C5607 I am of the view that one of the documents therein has evidentiary value and should be produced.This document is identified in the Schedule.In my opinion none of the documents contained in file number C4538 are of evidentiary value.The contents of the summary sheets numbered 00759, 00843 and 00854 are of evidentiary value and should be produced.

I therefore order that the Authority produce the documents identified in the Schedule and the summary sheets numbered 00759, 00843 and 00854.