1. The witnesses who have provided statements served in the brief of evidence under the assumed names [redacted] and [redacted] (“the witnesses”) be referred to as [redacted] and [redacted] (“their assumed names”), for the purposes of the hearing of this application;
2. The witnesses be allowed to appear before the Court at the hearing of these proceedings under their assumed names;
3. The witnesses be otherwise referred to by their assumed names during the course of the hearing, during the course of any other or further interlocutory proceedings conducted in connection with these proceedings and for all other purposes of these proceedings;
4. The Court be closed for the duration of the giving of any evidence by the witnesses in these proceedings, subject to officers of the NSW Police Force involved in investigating the offence before the Court and officers of the NSW Police Force attached to the NSW Police Force Undercover Programme and the legal representatives of the NSW Commissioner of Police being permitted to be present in the Court while the witnesses give evidence;
5. There be no disclosure of the real identity of the witnesses or of any document or evidence that identifies, or might facilitate the identification of the real identity of the witnesses, except as is necessary for the proper conduct of the proceedings;
6. There be no publication of the assumed identity of the witnesses or of any document or evidence that identifies, or might facilitate the identification of, the assumed identity of the witnesses, except as is necessary for the proper conduct of the proceedings;
7. Without limiting the generality of Orders 5 and 6, there be no disclosure outside the courtroom of any visual or other description or depiction of the physical appearance or any other identifying feature of the witness, except as is necessary for the proper conduct of proceedings;
8. [Redacted] is to be referred to as “UCO 548” in any publication;
9. [Redacted] is to be referred to as “UCO 534” in any publication;
10. Officers of the NSW Police Force shall have liberty to make arrangements with the court officers and sheriff’s officers regarding the entry to and exit from the courtroom by the witnesses;
11. The confidential affidavit of Malcolm Arthur Lanyon be placed in an envelope and marked “Confidential. Not to be opened except by order of a Judge” and is to be retained by the Court until the delivery of reasons for this decision and then to be returned to the NSW Crown Solicitor’s Office upon the undertaking that it will be kept, kept confidential and made available to the Court on request.
Catchwords:
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Application to protect identity of witnesses – undercover police officers – standing to intervene – applicant the employer…
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.
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Details
AGLC
R v Massey [2016] ACTSC 108
Case
[2016] ACTSC 108
Decision Date
CaseChat Overview and Summary
The case of R v Massey involved the application by the Commonwealth Director of Public Prosecutions to protect the identities of two undercover police officers who provided evidence in the case. The application was made to the Supreme Court of the Australian Capital Territory. The central issue before the court was whether the identities of the undercover officers could be protected from disclosure to the accused and the public, in light of the significant risks to the officers and the broader public interest in maintaining the confidentiality of undercover police operations.
The court examined the application under the public interest immunity provisions of the Evidence Act 2011 (ACT). It considered the importance of protecting the identities of undercover police officers to maintain the effectiveness of their work and the potential harm that could arise if their identities were disclosed. The court also weighed the public interest in the open justice system against the need to protect sensitive information. In its reasoning, the court noted the statutory provisions that reflect the common law, and the importance of interpreting the statute in light of the common law principles. The court concluded that the protection of the identities of the undercover officers was necessary to safeguard the public interest, and thus, granted the application for non-disclosure and anonymity.
The court's orders included the use of assumed names for the witnesses, closure of the court during their testimony, and restrictions on the disclosure and publication of any information that might reveal their identities. The orders also addressed the handling of a confidential affidavit and the procedures for its retention and return to the deponent. The court's decision emphasised the balance between the need for confidentiality in sensitive cases and the principles of open justice, ultimately finding in favour of the protection of the undercover officers' identities.
Orders
Orders of the court
1. The witnesses who have provided statements served in the brief of evidence under the assumed names [redacted] and [redacted] (“the witnesses”) be referred to as [redacted] and [redacted] (“their assumed names”), for the purposes of the hearing of this application;
2. The witnesses be allowed to appear before the Court at the hearing of these proceedings under their assumed names;
3. The witnesses be otherwise referred to by their assumed names during the course of the hearing, during the course of any other or further interlocutory proceedings conducted in connection with these proceedings and for all other purposes of these proceedings;
4. The Court be closed for the duration of the giving of any evidence by the witnesses in these proceedings, subject to officers of the NSW Police Force involved in investigating the offence before the Court and officers of the NSW Police Force attached to the NSW Police Force Undercover Programme and the legal representatives of the NSW Commissioner of Police being permitted to be present in the Court while the witnesses give evidence;
5. There be no disclosure of the real identity of the witnesses or of any document or evidence that identifies, or might facilitate the identification of the real identity of the witnesses, except as is necessary for the proper conduct of the proceedings;
6. There be no publication of the assumed identity of the witnesses or of any document or evidence that identifies, or might facilitate the identification of, the assumed identity of the witnesses, except as is necessary for the proper conduct of the proceedings;
7. Without limiting the generality of Orders 5 and 6, there be no disclosure outside the courtroom of any visual or other description or depiction of the physical appearance or any other identifying feature of the witness, except as is necessary for the proper conduct of proceedings;
8. [Redacted] is to be referred to as “UCO 548” in any publication;
9. [Redacted] is to be referred to as “UCO 534” in any publication;
10. Officers of the NSW Police Force shall have liberty to make arrangements with the court officers and sheriff’s officers regarding the entry to and exit from the courtroom by the witnesses;
11. The confidential affidavit of Malcolm Arthur Lanyon be placed in an envelope and marked “Confidential. Not to be opened except by order of a Judge” and is to be retained by the Court until the delivery of reasons for this decision and then to be returned to the NSW Crown Solicitor’s Office upon the undertaking that it will be kept, kept confidential and made available to the Court on request.