R v Massey
[2016] ACTSC 108
•5 April 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Massey |
Citation: | [2016] ACTSC 108 |
Hearing Date: | 5 April 2016 |
DecisionDate: | 5 April 2016 |
Reasons Date: | 30 May 2016 |
Before: | Refshauge J |
Decision: | 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 of witnesses – public interest immunity – value of undercover police work – risks if identities known – potential damage to public interest – matters of state – protection of undercover police officers – public interest in producing documents – open justice – proposed non-disclosure limited – closed court – use of pseudonyms Public interest immunity CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Confidential affidavit – process for considering confidential affidavits – non-disclosure to parties – no inspection of material by parties – affidavit returned to deponent STATUTES – INTERPRETATION – Statutory interpretation – Evidence Act 2011 (ACT) – public interest immunity – statute as primary source of interpretation – statute reflects common law – common law informs statute |
Legislation Cited: | Australian Security Intelligence Organisation Act 1979 (Cth), s 41 Court Procedures Act 2004 (ACT), s 76 Criminal Code 2002 (ACT), s 603(7) Court Procedures Rules 2006 (ACT), rr 6008(1), 6016 |
Cases Cited: | A3 v Australian Crime Commission [2006] FCA 894 Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioner (No 2) [1972] 2 QB 102 |
Texts Cited: | Australian Law Reform Commission Report 26, Evidence (AGPS: Canberra, 1985) Vol 1 |
Parties: | NSW Commissioner of Police (Applicant) The Queen (Crown) Matthew James Massey (Defendant) |
Representation: | Counsel Mr A Hill (Applicant) Mr S Drumgold (Crown) Mr A Doig (Defendant) |
| Solicitors NSW Crown Solicitor’s Office (Applicant) ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Defendant) | |
File Number: | SCC 90 of 2015 |
REFSHAUGE J:
Mathew James Massey has been charged with trafficking in methylamphetamine, contrary to s 603(7) of the Criminal Code 2002 (ACT).
According to the Case Statement filed by the Crown (a document the helpful use of which for pre-trial applications I have described in R v Goodwin (2009) 233 FLR 473 at 478; [26]-[35]), Mr Massey had contact with an undercover police officer and sold the officer two clip seal bags containing methylamphetamine.
Mr Massey was summonsed for the offence and appeared in court on 13 November 2014. After a number of adjournments, he pleaded not guilty on 16 February 2015 and, after some further adjournments, was committed for trial to this Court on 24 April 2015.
The trial was originally listed to commence on 14 December 2015 but that date was vacated on 7 December 2015 and the trial is now listed with priority to commence in the Central Criminal Listing Period commencing on 30 May 2016.
A pre-trial application by the NSW Commissioner of Police was listed before me on 5 April 2016 seeking various orders to protect the identity of the undercover officer to whom it is alleged Mr Massey sold the drug and another undercover officer involved in the proceedings.
I made appropriate orders. This is an unusual application, at least in this Territory, and it seemed to me useful to have recorded the procedure I considered should be followed following my experience with the application and the reasons for making the orders.
Accordingly, I indicated that I would deliver my reasons later. These are those reasons.
Application
The application sought the following orders:
1.Leave be granted to file this application in Court.
2.This application be returnable instanter.
3.The Court be closed for the purposes of the hearing of this application.
4.The witnesses who have provided statements served in the brief of evidence under the assumed names [two names were inserted here] (‘the witnesses’) be referred to as [two names were inserted here] (‘their assumed names’), for the purposes of the hearing of this application.
5.The witnesses be allowed to appear before the Court at the hearing of these proceedings under their assumed names.
6.The witnesses be otherwise referred to by way of 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.
7.The Court be closed for the duration of any evidence given by the witnesses in these proceedings, subject to officers of the NSW Police Force involved in investigating the offences 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.
8.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.
9.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.
10.Without limiting the generality of Orders 8 and 9, there be no disclosure 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 the proceedings.
11.[One name inserted here] to be referred to as ‘UCO 548’ in any publication.
12.[The other name inserted here] to be referred to as ‘UCO 534’ in any publication.
13.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 witness.
14.Any other orders that the Court considers appropriate.
The Applicant
In this case, the applicant was neither of the witnesses whose protection was sought for the purposes of the trial. There seems no doubt that a witness has standing to apply to have a subpoena to give evidence set aside: Witness v Marsden (2000) 49 NSWLR 429 at 440; [51]. The Court further held at 442; [60], that such an application could seek lesser protection than the setting aside of the subpoena, such as the use of a pseudonym for the witness in the proceedings.
Although this was not an application to set aside a subpoena, no point was taken by either the Crown or Mr Massey that the applicant was neither a party nor a witness to the proceedings. The applicant, the NSW Commissioner of Police, was, of course, the employer of the two undercover officers.
A somewhat similar situation to this application was encountered in Mooseek (1991) 56 A Crim R 36, where, on an application for leave to appeal by an accused against his conviction, counsel for a police officer, who had given evidence of a recorded conversation between the accused and a police informer, and for the Australian Federal Police sought leave to intervene or be heard in the application for leave to appeal.
Counsel wished to submit that the Court should not decide anything that would result, in the event that the court were to order a new trial, in the identity of the informant being required to be revealed.
In the event, the Court dismissed the application for leave to appeal so it did not have, ultimately, to decide the question of whether to grant counsel leave to appear. It did, however, indicate that it would not have permitted the intervention of either party, though that was, in part, because the particular occasion for the intervention, on an application for leave to appeal, was not an appropriate one for such intervention for the desired purpose.
The Court continued at 54:
Whilst there are occasions when it is appropriate to allow counsel to appear to represent a witness in a criminal or civil trial when the witness is in need of particular protection or wishes to rely upon a particular privilege or immunity, intervention on behalf of a witness in an application for leave to appeal against conviction must be very rare indeed. Counsel was not able to refer us to any case where it had been done. The court has a discretion to allow intervention in any proceedings but it is a discretion to be exercised very carefully, especially in criminal proceedings. Where intervention is sought in the public interest, it should ordinarily be sought by or on behalf of the Attorney-General.
Although it seems to me that an application for special provisions for the protection of a witness should ordinarily be made by counsel appearing for that witness, not someone else, even the witnesses’ employer, the application here was rather premised on the basis of public interest immunity, as appears below.
As a result, the point made by Bowen CJ in Young v Quinn (1985) 59 ALR 225 at 227, is appropriate, where his Honour said:
The proposition that a claim to public interest immunity does not arise inter partes is further supported by the rule that the claim may be made by any person, including one not a party to the proceedings.
This is reinforced by the helpful list of persons, who might have standing to apply for an order for the non-disclosure of documents or information on the grounds of public interest immunity, provided by Smart J in Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667 at 690 as follows:
The court, the parties to proceedings, recipients of subpoenas or witness summonses, the Crown and those having a particular interest, such as the Gaming Board, can raise questions of public interest immunity. This is not an exhaustive list.
The reference to the Gaming Board is a reference to the situation in Rogers v Home Secretary [1973] AC 388, in which the position of the Gaming Board was identical to that of the Commissioner of Police in this case.
Smart J made the point, at 689, that, were the Crown, such as in the office of the Attorney-General, from whom the authority to prosecute ultimately derives, to make a claim for public interest immunity as opposed to the relevant agency or, in the case of the Commissioner of Police, an independent authority, this may result in apparent embarrassment to the prosecution seeking to avoid disclosure, where the Crown was, in reality, appearing in two interests, one with a duty of disclosure, the other seeking to restrict it.
I note further that the Commissioner has been permitted in a number of other cases to intervene to protect such interests as were sought to be protected in this application in New South Wales. In Commissioner of Police New South Wales v Nationwide News Pty Ltd (2008) 70 NSWLR 643, the Commissioner appealed against a decision of a judge in proceedings commenced by a plaintiff for damages against the State of New South Wales arising out of psychiatric injury. The Commissioner had intervened in the trial to seek the anonymity of certain persons by use of pseudonyms and other limited disclosure. There was no suggestion that the Commissioner lacked standing before the trial judge or the Court of Appeal.
In Attorney-General for New South Wales v Nationwide News Pty Ltd (2007) 73 NSWLR 635, the Commissioner intervened in a trial of the accused for murder applying for a restriction on the publication of certain evidence and other statements made during the trial so as to avoid reference to undercover operatives by name. The trial judge refused the application but not, so it seems, on a ground of the absence of standing. The Attorney-General, however, appealed the decision of the trial judge. No issue was raised on the appeal of the standing of the Commissioner to intervene before the trial judge.
I am satisfied that the Commissioner had standing to make the application that has been made.
Grounds of application
The grounds of application set out in the Application in Proceedings were as follows:
The orders are sought on the following, alternative grounds:
1.In the case of Orders 3 and 7 – the Court’s inherent power;
2.In the case of Order 9 – s 111, Evidence (Miscellaneous Provisions) Act 1991 (ACT); and/or
3.In the case of all other orders – s 130, Evidence Act 2011 (ACT).
Commencing the application
Advanced notice was informally provided of the application. The foreshadowed application was raised when the proceedings were mentioned in the Registrar’s List on 24 March 2016 and the foreshadowed application was listed to be heard before me on 5 April 2016.
The Application in Proceedings was not filed, however, until the day of the hearing. Hence the requests in paragraphs 1 and 2 of the orders sought.
Ordinarily, an Application in Proceedings should be served two days before the return date: r 6008(1) of the Court Procedures Rules 2006 (ACT).
There is no doubt that, in urgent cases, the court will permit short service of interlocutory process. See Hart v Tulk (1849) 6 Hare 611; 67 ER 1306.
The court can, of course, entertain an oral application. See r 6016 of the Court Procedures Rules. The singular advantage of a written application is that the orders sought are spelled out and, hopefully, have been the subject of thoughtful consideration and careful drafting to encapsulate exactly what is sought. It is helpful, not only to the court, but to the parties, for the court to be able orally to pronounce, at the conclusion of an interlocutory argument, that the orders sought in the Application in Proceedings be made.
An oral application is often made where the parties are before the court and there is no need for notice or, alternatively, notice is waived by the other party. See Turner v Manier (No 1) [1958] VR 350 at 352-3. Where the other party is taken by surprise or needs time to respond, the court will, almost as a matter of course, grant an appropriate adjournment.
This case, however, was not one of any particular urgency and it was not and could not appropriately be made by an oral application.
All the parties, that is the Crown and Mr Massey, as well as the Commissioner, appeared by counsel on the day of the hearing of the application, and each had a short opportunity to inspect the relevant documents. No counsel sought an adjournment, nor complained of lack of notice of the application in general.
It seemed to me that, on the basis of past practice, fairness to the parties who would be affected by the orders, in this case the Crown and Mr Massey, and the plain good sense of the reasonable response by the parties, it was appropriate that I proceeded in accordance with orders 1 and 2 of the Application in Proceedings.
The facts
The Commissioner filed two affidavits, one an open affidavit, a copy of which was provided to the court and to the parties, and the other a confidential affidavit, which was only provided to the court and not to the parties. I shall address the issues surrounding the confidential affidavit below.
The open affidavit deposed to the following matters.
The two relevant police officers held assumed identities in accordance with authorities properly issued under s 6 of the Law Enforcement and National Security (Assumed Identities) Act 2010 (NSW). Their true identities were recorded in a secure electronic database, which information is retained indefinitely.
The officers were deployed in an operation named Strike Force Delicate which involved a controlled operation to purchase drugs from various targets and included an involvement with Mr Massey which resulted in him being charged with the offence for which he is to stand trial.
The affidavit then explained the importance of the deployment of undercover police officers, especially to the investigation of organised and serious crime. In the absence of such deployment, it was deposed that many serious crimes and the perpetrators would either not be identified or unable to be prosecuted through a lack of sufficient evidence.
The affidavit then explained, in some detail, the value of such work and the risks to the undercover police officers were their identities to become known. The relevant portion of the affidavit was as follows:
14.In order for an undercover operative to be used effectively in an investigation, it is imperative that he or she be able to associate with the person(s) of interest in an investigation, and any of their associates that the undercover operative may encounter, without those persons knowing that the undercover operative is a police officer. The maintenance of the anonymity of the undercover operative is essential to his or her use and effectiveness.
15.Disclosure of an undercover operative to the person(s) of interest in an investigation, or to their associates, would result in the operative being immediately withdrawn from that investigation, and could preclude other operatives being used in or introduced into the investigation. In such circumstances, it would be likely that Police would be prevented from obtaining the intelligence that is crucial for the proper discharge of their functions, including investigating criminal activities and obtaining information necessary to conduct a successful prosecution. Furthermore, such disclosure could put at risk the safety of the operative and people associated with the operative, including friends and family.
16.The use of undercover operatives is a highly effective tool in the investigation and disruption of criminal activity and for the gathering of evidence. If the use of these operatives was to be compromised by their identities becoming known, and the police could no longer rely on their use, it would hamper the ability of police to prevent and investigate crime.
17.Important aspects of the role of an undercover operative in many police operations include the building of a rapport between the operative and the person of interest in the operation and the operative endeavouring to gain the trust of the person of interest. The nature of the relationship that can develop between an undercover operative and the person of interest increases the already considerable risk that undercover operatives face – a level of risk that is greater than that faced by police officers carrying out regular duties. This is because when a person of interest is arrested he or she can often feel an acute sense of betrayal or resentment upon the revelation of the undercover operative’s role, which gives the person of interest an increased motivation to seek retribution. Furthermore, it is often the case that undercover operatives are able to give important evidence against an accused, providing a further motive for retribution or the threat of retribution. Indeed, in some cases the evidence of the undercover operative is crucial to the success of the prosecution, and in the absence of that evidence, the prosecution will fail.
18.Much of the investigative work with which undercover operatives are involved relates to the suspected criminal activities of organised crime figures who have the capacity to carry out acts of retribution on any undercover operatives investigating their activities. In other cases typically investigated by undercover operatives, the person of interest is suspected of an involvement in serious criminal activity (even if not as part of an organised crime syndicate) and has a similar capacity to pose significant risk to any undercover operatives investigating their activities.
19.The disclosure, or wider dissemination, of the true identity or the physical appearance of the undercover operatives would facilitate efforts directed at retribution (whether against the operative personally or against his or her family, friends or other associates) and efforts directed at preventing him or her from giving evidence. Such disclosure would help enable the undercover operative to be located and would help in the commissioning of other persons to carry out acts of retribution or acts directed at preventing him or her from giving evidence.
20.If the identities of undercover operatives were not protected, police would have great difficulty in encouraging officers to continue in these very difficult and dangerous duties. A similar difficulty would arise in recruiting new officers to undertake this work.
In the affidavit, the deponent added that further details of the risk to operatives and in support of the application were contained in the confidential affidavit and continued:
My confidential affidavit was prepared for inspection solely by the presiding Judge, and I believe that access to its contents by any other person or party would be harmful to the public interest.
Confidential affidavit
When a public interest immunity claim is made, the court will expect that the applicant for the claim will file an affidavit that addresses the basis and scope of the claim stating, as Mason J said in Sankey v Whitlam (1978) 142 CLR 1 at 96, “with precision the grounds on which it is contended that documents or information should not be disclosed so as to enable the court to evaluate the competing interests”.
In Dupont v Chief Commissioner of Police (2015) 53 Fam LR 278 at 286; [38], the Full Court of the Family Court of Australia said of such an affidavit that it
should not contain confidential information that cannot be disclosed to the parties. In rare cases the court will receive a confidential affidavit (R v Mokbel (Ruling No 1) [2005] VSC 410) and may take additional evidence in a closed hearing or indeed in camera. Countervailing evidence is rarely allowed (Young v Quin (1985) 59 ALR 225).
Despite this comment, it seems that perhaps a different approach is adopted more widely and is suggested to be more appropriate, as appears below.
Thus, in this case, a confidential affidavit, sealed in an envelope, was read by the Commissioner on the basis that it would not be made available to the Crown or to Mr Massey.
Initially, I enquired of counsel for the parties as to whether they objected to me reading the confidential affidavit. The Crown did not object.
Unsurprisingly, counsel for the accused pointed out that, as he had not seen the affidavit and was not going to be shown it, he could not meaningfully respond to my inquiry. I now realise that such an inquiry was inappropriate and unnecessary.
I then made a proposal which drew on my experience with the Security Appeals Tribunal, established under s 41 of the Australian Security Intelligence Organisation Act 1979 (Cth) (until repealed), where evidence from the Australian Security Intelligence Organisation (ASIO) was given in private but a summary of the evidence, careful to exclude confidential matters, was revealed by the Tribunal to the applicant challenging the assessment. This is a very unusual step, as noted by Brennan J in Re Pochi as Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33 at 53-7.
I suggested to the parties that I should follow that process. Counsel for the Commissioner objected and submitted that the parties were not entitled to look at, receive a summary of, or object to the confidential affidavit.
Ultimately, I accepted the Commissioner’s submission. I have now had an opportunity to consider the law on this matter.
The position of such an affidavit, on which an applicant for public interest immunity sought to rely, was discussed by Bowen CJ in Young v Quinn at 227, where his Honour said:
It was argued before us by counsel for the appellant that the court not only was not bound to allow cross-examination upon an affidavit tendered in support of a claim to public interest immunity, but was not entitled to do so, as a general rule. Comparison was made with an affidavit of discovery of documents. In such an affidavit a claim for privilege may be made. The rule is that the oath of the deponent in the case of an affidavit of discovery has to be accepted. The court will not permit cross-examination on such an affidavit and, generally, it will not permit countervailing evidence to be given, although there are well recognized exceptions to this (Edmiston v British Transport Commission [1956] 1 QB 191; Lyell v Kennedy (1884) 27 Ch D 1 at 19; Ankin v London & North East Railway Co [1930] 1 KB 527). In such cases the affidavit is regarded as being required in order to pledge the oath of some person in a position to speak to the matters in the affidavit. It is not tendered as evidence in the lis. It was submitted that an affidavit making a claim of public interest immunity (taking the place of the certificate of a Minister which was formerly conclusive) was in the same way required in order to pledge the oath of someone able to speak to the facts; it was not tendered as evidence in the lis, but for the purpose of enabling the court to rule on the claim for immunity. There is a good deal of force in this submission.
See also Attorney-General for New South Wales v Stuart at 681.
It is the case that confidential affidavits have been used in other proceedings. See Yooyen, Tait and Poompiriyapinte (1991) 57 A Crim R 226 at 233; Meissner (1994) 76 A Crim R 81 at 85; Smith (1996) 86 A Crim R 308 at 310.
Some concern has been expressed at such a procedure. I have referred above (at [41]), to what was said in Dupont v Commissioner of Police. In R v Mokbel (Ruling No1) [2005] VSC 410 at [19]-[24] Gillard J said:
19.... I read the confidential affidavit and save for one reference therein, which may have compromised an investigation, I raised with counsel for the Office why was it contended that it should be a confidential affidavit. After further discussion, the Office sought leave to withdraw the confidential affidavit and leave was granted to remove the affidavit from the file.
20 The New South Wales Court of Criminal Appeal considered the question of a confidential affidavit, only to be seen by the Court, in R v Beibic [(Unreported, delivered 27 May 1982)]. Samuels JA said in the course of delivering the judgment of the Court [at p 4]:
Mr Mason tendered an affidavit in support of his claim for privilege. He submitted, however, that the affidavit should not be placed on the file, that is to say that it should be read only by the court and not disclosed to the party calling, on the footing that the contents of the affidavit would or might themselves compromise the claim for privilege.
We had, and we still have some doubts about the propriety of restricting the affidavit in the way proposed. However, it may well be that that course is, in certain cases, of which this is one, no more than a logical extension of the established practice of the court inspecting the allegedly privileged documents itself; see Conway v Rimmer [1968] AC 910; Sankey v Whitlam (1978) 142 CLR 1.
21 Later his Honour said:
It seems to us that granted it is now common place for judges to make a private inspection of documents in order to resolve a claim for privilege … it follows that in a proper case the judge may similarly keep to himself the affidavit by which the claim is supported. It is a question of public interest which is to be decided separate from the lis between the principal antagonist, and which, in the present case, the party answering the subpoena is not involved.
22 In NCA v Gould [(1989) 90 ALR 489], Foster J, after quoting the above observed that the statements were of general application.
23 In a later case that went to the New South Wales Court of Criminal Appeal, both the trial judge and the Court of Appeal judges considered confidential affidavits which were not made available to the lawyers acting for the parties. - [See Meissner (1994) 76 A Crim R 81 at 85]. In R v Rusmanto (1976) 6 WTLR 68, Thomas J followed those cases and received confidential affidavits which were not disclosed to the parties.
24 I do not doubt that the Court could in special circumstances receive a confidential affidavit raising the objection to production pursuant to a subpoena on the ground of public interest immunity, which was not disclosed to the parties in the actual proceeding. However, in my opinion, the acceptance of a confidential affidavit not disclosed to the party filing the subpoena would be a rare case. I state that for a number of reasons. If an objection is upheld to the production of documents pursuant to a validly issued subpoena, on the basis of what is contained in a confidential affidavit, it means that the party filing it is denied the opportunity of attacking or testing the evidence and is unaware of the evidence which led the court to make the decision it did. This leads to a justifiable criticism that the party was denied a fair hearing and an opportunity to properly argue the issues. The importance of doing justice is an essential condition to the administration of justice in this State...
On the other hand, the Court of Criminal Appeal in New South Wales has suggested that there are good reasons for an applicant for non-disclosure on the ground of public interest immunity to rely on a confidential affidavit that is not read by the parties. In Attorney-General for New South Wales v Nationwide News Pty Ltd where Hodgson JA, with whom Hislop and Latham JJ agreed, said at 642-3; [43]:
The confidential affidavits were not of course read in the trial, but were only read in a voir dire application by the Commissioner. They contain many details that do not in the event affect the basis of this decision, and disclosure of which would not be in the public interest. In my opinion, it is necessary for the administration of justice that applications of this kind can be made with full disclosure of details relevant to the public interest sought to be invoked. That is only possible if affidavits can be kept confidential. I propose to order that the confidential affidavits in this case be placed in a sealed envelope and not accessed without the order of a Supreme Court judge.
The concerns expressed in R v Mokbel (Ruling No 1) have not been universally shared. In Parkin v O’Sullivan (in his capacity as Director-General of Security) (2009) 260 ALR 503 at 510; [28], the Court said:
In more recent cases it appears to have become a matter of course for ‘confidential’ affidavits supporting public interest immunity claims to be restricted to the judge. See, for example, R v Smith (1996) 86 A Crim R 308 at 310; Dodds v R [2009] NSWCCA 78 at [55] and R v Meissner (1994) 76 A Crim R 81 at 85.
There are, of course, occasions where a court will peruse documents without the parties having access to them. This will occur where, for example, the addressee of a subpoena claims privilege. Under the three-step process described in National Employers’ Mutual General Association Ltd v Waind [1978] 1 NSWLR 372 at 381-6, the court has power to, and will often, inspect the document itself, without disclosure to the parties, to determine whether the privilege is properly claimed. See Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioner (No 2) [1972] 2 QB 102 at 129, an approach endorsed by Mason and Wilson JJ in Waterford v Commonwealth (1987) 163 CLR 54 at 61. See also Alister v The Queen (1984) 154 CLR 404 where the High Court itself inspected material the subject of a claim for public interest immunity from production where no party inspected the material.
Despite the concerns expressed by Gillard J, it seems that the use of confidential affidavits, the contents of which are not disclosed to the parties, is more widespread than appears. Thus, in National Crime Authority v Gould (1989) 23 FCR 191, to which Gillard J referred, Foster J said at 199, after referring to the passages from R v Beibic (Unreported, New South Wales Court of Criminal Appeal, Samuels JA, Nagle CJ at CL, Cantor J, 20, 28, 29, 30, 38, 39 of 1981, 27 May 1982) cited by Gillard J:
I consider that these statements are of general application. In my view, if the learned magistrate had debarred himself from considering the contents of Mr Allen's affidavit on the basis that he should not do so unless it was disclosed to the defence in advance of his consideration, then he would have fallen into error. I repeat that, it is not clear that he has done so. He was, however, urged to take this course by counsel for the second respondent and, in those circumstances, I have felt it appropriate to deal with the questions in the way that I have.
In this Territory, that approach has been adopted. It appears that Connolly J adopted it in R v Bersinic [2007] ACTSC 46 at [5], though it may have only been that the affidavit, not there described as a confidential affidavit, was read in closed court rather than being confidential to the judge. In R v Eastman [2015] ACTSC 97 at [25], Whealey AJ used a confidential affidavit not disclosed to the parties to assist in the determination of a public interest immunity claim. In Eastman v Director of Public Prosecutions (No 2) (2014) 9 ACTLR 178 at 229-30; [162], the Full Court said:
Courts frequently receive disclosure of all or some part of the subject-matter of a claim for immunity in confidential affidavits so that they can assess that claim for that immunity: cf the discussion of ML Foster J in National Crime Authority v Gould (1989) 23 FCR 191 at 198–199. Indeed, s 130(3) of the Evidence Act now expressly permits the Court to inform itself in any way it thinks fit in deciding whether to make a direction that the information or document not be presented in evidence under s 130(1): Attorney-General v Kaddour & Turkmani [2001] NSWCCA 456 at [20] per Sully J, with whom Spigelman CJ and Adams J agreed.
Finally, there was no occasion for adopting the device sometimes used by courts but which is often very problematic, of permitting inspection of material, in this case the confidential affidavit, by the lawyers for the parties only and not the parties themselves. In this case, that would realistically result only in Mr Massey not seeing the affidavit, but created some problems for his counsel.
The concerns of such an approach have been well explored in Commonwealth v Northern Land Council (1993) 176 CLR 604 at 620 and in Jackson v Wells (1985) 5 FCR 296 at 307-8. I adopted this myself in another context in R v Scerba (2015) 299 FLR 221 at 225; [25].
Accordingly, I did not proceed as I had proposed. I read the confidential affidavit. I did not seek the further views of the parties as to whether I should do so (and probably erred in originally doing so). No party nor their lawyers read it. I relied on it. I will also, upon completion of these reasons, return the confidential affidavit to the Commissioner as requested, upon an undertaking, given by his counsel, that it will be kept and kept confidential and produced if required.
Public interest immunity
The claim itself was that the orders sought should be made in accordance with the public interest immunity permitted by s 130 of the Evidence Act 2011 (ACT). That section is in the following terms:
130 Exclusion of evidence of matters of state
(1) If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be presented as evidence.
(2) The court may give a direction under subsection (1) on its own initiative or on the application of any person (whether or not the person is a party).
(3) In deciding whether to give the direction, the court may inform itself in any way it thinks fit.
(4) Without limiting the circumstances in which information or a document may be taken for subsection (1) to relate to matters of state, the information or document is taken for that subsection to relate to matters of state if presenting it as evidence would—
(a) prejudice the security, defence or international relations of Australia; or
(b) damage relations between the Commonwealth and a State or between 2 or more States; or
(c) prejudice the prevention, investigation or prosecution of an offence; or
(d) prejudice the prevention or investigation of, or the conduct of proceedings for recovery of civil penalties brought in relation to, other contraventions of the law; or
(e) 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; or
(f) prejudice the proper functioning of the government of the Commonwealth or a State.
(5) Without limiting the matters the court may take into account for subsection (1), it must take into account the following matters:
(a) the importance of the information or the document in the proceeding;
(b) if the proceeding is a criminal proceeding—whether the party seeking to present evidence of the information or document is a defendant or the prosecutor;
(c) the nature of the offence, cause of action or defence to which the information or document relates, and the nature of the subject matter of the proceeding;
(d) the likely effect of presenting evidence of the information or document, and the means available to limit its publication;
(e) whether the substance of the information or document has already been published;
(f) if the proceeding is a criminal proceeding and the party seeking to present evidence of the information or document is a defendant—whether the direction is to be made subject to the condition that the prosecution be stayed.
(6) A reference in this section to a State includes a reference to a Territory.
This test appears closely to reflect the common law position. This is unsurprising as the Australian Law Reform Commission in its Report 26, Evidence (AGPS: Canberra, 1985) Vol 1, at 490; [864] said of its proposals:
Research and enquiries have not revealed any serious inadequacies in the current common law approach. It is proposed to interfere as little as possible with the common law as it has developed with respect to public interest privilege. It presently requires a balancing exercise, weighing the advantages of non-disclosure of information against the disadvantages.
The approach of the courts to the Evidence Act has not always accommodated continued operation of the common law. For example, in relation to the question of the probative value of evidence under that Act, the plurality said in IMM v The Queen [2016] HCA 14 at [35]:
The issue here concerning a trial judge's assessment of the probative value of the evidence in question arises in the context of a statute that was intended to make substantial changes to the common law rules of evidence. The statute's language is the primary source, not the pre-existing common law.
(footnotes omitted)
While this is the situation in relation to issues where there has been deliberate reform, such as in relation to tendency and co-incidence evidence and hearsay evidence, it does not appear that the approach necessarily applies to all provisions of the Evidence Act and, it appears, does not apply to the doctrine of public interest immunity. There are many judicial statements to this effect. See, for example, Eastman v The Queen (1997) 76 FCR 9 at 63; New South Wales v Ryan (1998) 101 LGERA 246 at 253; Choi v Minister for Immigration and Multicultural Affairs (1998) 55 ALD 140 at 145; Woodroffe v National Crime Authority (1999) 168 ALR 585 at 588; [11]; Maritime Union of Australia v Geraldton Port Authority (1999) 88 IR 351 at 354; [12]; Chapman v Laminis Pty Ltd (No 2) (2000) 100 FCR 229 at 246; [54]; New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60 at [43]; Yufeng Mao v Commonwealth [2012] NSWSC 370 at [20]; Director of Public Prosecutions (Vic) v Debono (2012) 225 A Crim R 585 at 590; [18].
In the latter case, Director of Public Prosecutions (Vic) v Debono, Kyrou J referred to the fact that the common law “informs the content and operation of s 130”. This may be a somewhat guarded comment which echoes the comment of Dixon J in Murdesk Investments Pty Ltd v Secretary to the Department of Business and Innovation [2011] VSC 436 at [20], where his Honour said:
Although s 130 closely resembles the common law doctrine of public interest immunity, there are subtle differences. Public interest may be a wider concept that State interest, which may not cover communication at lower levels of government, but such questions need not be here considered.
Later, in Ryan v Victoria [2014] VSCA 340, the Victorian Court of Appeal commented on the decision of a trial judge, who accepted a claim of immunity under s 130 of the Evidence Act 2000 (Vic) on the basis that the material sought not to be disclosed would reveal police methodology. The Court said at [28]:
The decision of the trial judge raises important issues about the scope of s 130 of the Evidence Act 2008, including, in particular, the meaning of the expression ‘matters of state’. Analysis of the judgment also may require consideration of the extent to which, if at all, common law principles governing public interest immunity are still relevant, and applicable, to claims of that kind.
Nevertheless, I am satisfied that the common law is an important starting point for the content of the public interests identified in s 130(1) and (4) of the Evidence Act, bearing in mind that the language of the section is, and must remain, the primary source of interpretation.
What needs to be balanced was explained at common law in Alister v The Queen at 412 by Gibbs CJ as follows:
The final step in this process - the balancing exercise - can only be taken when it appears that both aspects of the public interest do require consideration - i.e., when it appears, on the one hand, that damage would be done to the public interest by producing the documents sought or documents of that class, and, on the other hand, that there are or are likely to be documents which contain material evidence. The court can then consider the nature of the injury which the nation or the public service would be likely to suffer, and the evidentiary value and importance of the documents in the particular litigation. But the anterior question arises - should the court look at the documents to assist it in answering these questions?
This is, of course, in the context of the long established principle that courts conduct themselves in open and derogation from that principle is tightly confined. See R v Meegan [2014] ACTSC 263 at [7]-[16]. Nevertheless, it is to be accepted that “[a]n established basis of public interest immunity will trump the open justice principle, but no more than is necessary to protect the subject matter of the immunity”: Commissioner of Police New South Wales v Nationwide News Pty Ltd at 651; [52].
Indeed, the immunity from disclosure of documents within the relevant category or containing the relevant content applies more widely than just in the curial context as a rule of evidence, but as a doctrine of substantive law: Jacobsen v Rogers (1995) 182 CLR 572 at 588-9.
In order, then, to conduct the required balancing exercise, it is necessary to identify the relevant interests.
It is for the applicant to discharge the onus of proving that the public interest in preserving the secrecy or confidentiality of information or documents outweighs the public interest in producing them: Director of Public Prosecutions (Vic) v Debono at 591; [28]. As the Victorian Court of Appeal said in State of Victoria v Brazel (2008) 19 VR 553 at 575; [68]:
The claim for immunity must be articulated with rigour and precision, and supported by evidence demonstrating the currency and sensitivity of the information, so as to constitute a compelling case for secrecy. Anything less will be unlikely to suffice.
The first interest to be considered is the interest in preserving confidentiality of what is referred to in the Evidence Act as “matters of State”. They are non-exhaustively listed in s 130(4). In this case, what is sought to be subject of non-disclosure are the names and identities of the undercover police operatives.
This is sought on the basis of the safety and protection of the officers, which will also have an effect on the efficacy of the use of such methods, but also because disclosure may compromise other investigations in which the operatives may have been, or will be involved. Thus, there is a risk to future police investigations.
This seems to me to fall within the meaning of s 130(4)(c) and (e) of the Evidence Act and thus fall within the notion of a matter of state.
As was noted in Attorney-General for New South Wales v Nationwide News Pty Ltd at 641; [31], the position of undercover police operatives has some similarities with that of the informers, who have been protected for many years, at least since Marks v Beyfus (1890) 25 QBD 494 at 498, 500 was decided, if not before. See, for example, Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667 at 674; Gardiner v The Queen (2006) 162 A Crim R 233 at 254-5; [98]-[99]. Indeed, the New South Wales Court of Criminal Appeal said in Smith at 311-2:
There is powerful authority for the proposition that, at common law, when a claim for immunity is made in respect of the identity of a police informer, the court before whom the claim is made does not undertake for itself, afresh, a balancing exercise, weighing one interest against another. The balance has already been struck; it falls on the side of non-disclosure except where, at a criminal trial, disclosure could help show that the accused is not guilty: see D v National Society for the Prevention of Cruelty to Children, above, at 218; Cain v Glass (No 2) (1985) 3 NSWLR 230 at 246-247. Contrary views, in support of a conclusion that a balancing exercise is still required, have been expressed: see, eg, Meissner (1994) 76 A Crim R 81. Section 130 of the Evidence (Consequential and Other Provisions) Act 1995 (which, although the learned magistrate was not referred to it, applies to the committal proceedings against Smith) appears now to require a weighing of competing interests. Even so, at the very least, the Attorney General is entitled to rely upon the high importance which this aspect of the law of public interest immunity attaches to the protection of the identities of police informers, and the generally accepted reason for that importance.
Nevertheless, the position of an undercover police operative is somewhat different. The evidence from such police officers is admissible, notwithstanding some participation by them in criminal activity. See R v Haughbro (1997) 135 ACTR 15.
In this case, a particular concern was as to the consequences that may flow from the failure to respect the protections sought. The consideration of such consequences is important, having been stressed in John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of New South Wales (1991) 26 NSWLR 131 at 161. The consequences are well spelled out there: hardship on the operative, impeding the availability of such evidence and the greater difficulty of obtaining such evidence necessary to bring offenders before the courts and deal with them.
A further issue in this case was the risk of disclosure of police investigative methods. The question here is whether the information about the methods is secret and whether its release will damage effective law enforcement.
Thus, in Beneficial Finance Corporation Ltd v Commissioner for Australian Federal Police (1991) 52 A Crim R 423 at 436-7, Wilcox J declined, on the ground of public interest immunity, to order the production of the material used in the application for the issue of search warrants, accepting the assertions in an affidavit that deposed to concerns that, were persons the subject of such investigation able to discover that previously unknown criminal investigations were being carried out concerning them, the investigations would be impeded, if not wholly frustrated, especially as steps would then be likely to be taken by such persons to conceal or destroy inculpatory evidence or manufacture exculpatory evidence.
Further, his Honour accepted that the names of potential witnesses included in the material should not be disclosed, because, if their names were released those persons may be subject to inducements to be uncooperative or untruthful. His Honour’s decision was upheld on appeal: Beneficial Finance Corporation v Commissioner of Australian Federal Police (1991) 31 FCR 523.
As Hunt CJ at CL said in Attorney-General for New South Wales v Stuart at 675:
As another part of that broader public interest, it is essential that nothing used by police in their pursuit of criminals should be disclosed which may give any useful information concerning continuing inquiries to those who organise criminal activities: Conway v Rimmer (at 953-954); or which may impede or frustrate the police in that pursuit: ibid (at 972); or which may reveal matters to the prejudice of future police activities: Young v Quin (1985) 4 FCR 483 at 492; 59 ALR 225 at 234; Beneficial Finance Corporation Ltd v Commissioner of Australian Federal Police (1991) 52 A Crim R 423 at 436-437; and on appeal (1991) 31 FCR 523 at 527-528; 103 ALR 167 at 172; 58 A Crim R 1 at 5. Its rationale is that, if such information were disclosed prior to charges being laid (so that criminals would know what information the police have about them), they will be able to tailor their stories to facts which cannot be disputed, to organise their responses to questions and to arrange alibis. Harm may come or be threatened to prospective witnesses before being interviewed by the police, particularly in relation to inquiries about crimes of violence.
See also Commissioner of Police of New South Wales v Nationwide News Pty Ltd at 648; [35] and Western Australia v Christie (2005) 30 WAR 514 at 522-3.
That consideration may well be accepted and provides strong support for appropriate protection. On the other hand, the mere assertion of the need for such secrecy or confidentiality does not justify non-disclosure of itself. Thus, as noted by the trial judge, whose decision was not overturned on appeal, in Attorney-General for New South Wales v Nationwide News Pty Ltd at 637-8; [17], such material may in fact be in the public domain and, where that is so, publication may extend the currency of the information about the “design, implementation of and successful utilisation of the technique [of using undercover operatives]” but that this did not mean that suppression would be necessary for the administration of justice.
Hodgson JA, with whom Hislop and Latham JJ agreed, continued at 642; [39]:
... in my opinion there is a real question whether this could possibly be a sufficient detriment or risk of detriment, when evidence of those particular methods would have to be given in all cases where they are successfully applied, so that the methods would necessarily become known to the accused in those cases and through them to others. Further, in circumstances where the methods have already received substantial publicity, it is not shown that suppression of information in this case will in a significant way alleviate the detriment or risk of detriment.
In this case, the orders sought do not really address techniques of investigation as a central issue but, in reality, the protection of the particular undercover police operatives and their particular work.
The countervailing interest set out in s 130(1) of the Evidence Act is the public interest in admitting the information or documents into evidence. This, of course, springs from the principle that all relevant information should be admitted into evidence to ensure that justice is done. See Sankey v Whitlam at 49, 95-6. For a decision to the same effect under the Evidence Act 1995 (Cth), see A3 v Australian Crime Commission [2006] FCA 894 at [19].
In order to identify that interest in the relevant context, however, it is necessary to identify the precise forensic purpose and actual, not hypothetical, relevance of the evidence sought to be admitted, as explained in Attorney-General (NSW) v Lipton (2012) 224 A Crim R 177 at 189-90; [52], 193; [68].
In this case, there was no challenge to the approach sought to be taken and this issue was not articulated in a way that caused me difficulty with the balancing exercise.
The most that was submitted was that Mr Massey would be likely to know the features of and recognise the undercover operatives and that it would be difficult to prevent him from sharing that with others in the criminal milieu in which he may move.
That, however, does not seem to me to justify disclosure which would have the capacity to disseminate injurious information much more widely.
There was, however, no indication that the information not disclosed was necessary not merely for Mr Massey’s case (indeed, that was not submitted) but for the resolution of any issue in the case. See Public Transport Ticketing Corporation v Integrated Transit Solutions Ltd [2010] NSWSC 607 at [22](v).
In any event, the scope of the non-disclosure is relatively limited and this may, in an appropriate case, justify non-disclosure. See Chapman v Luminus Pty Ltd (No 2) at 249; [63].
In any event, the non-disclosure sought is not of all the evidence of the undercover police operatives which the Crown otherwise seeks to adduce in the prosecution, but a more limited range of measures which will protect the information which is most sensitive and the disclosure of which would have the most deleterious consequences but, so far as appears to me, will not compromise a fair trial for Mr Massey.
That neither the Crown nor, most importantly, Mr Massey objected to the measures means that I can approve them more confidently.
Closed Court
The first measure is that the court be closed. This was sought for the application, which I granted, but also for the hearing of the evidence of the undercover police operatives who were to give evidence.
As noted in R v Meegan, the principle of open justice is a very important one, especially for the criminal courts. Nevertheless, there are exceptions to this principle, which may justify the court being closed so that the public does not hear the evidence in a particular circumstances. Such was accepted by the House of Lords in Scott v Scott [1913] AC 417 at 437-8, where Lord Haldane said:
While the broad principle is that the Courts of this country must, as between parties, administer justice in public, this principle is subject to apparent exceptions, such as those to which I have referred. But the exceptions are themselves the outcome of a yet more fundamental principle that the chief object of Court of justice must be to secure that justice is done ... As the paramount object must always be to do justice, the general rule is to publicity, after all only the means to an end, must accordingly yield. But the burden lies on those seeking to displace its application in the particular case to make out that the ordinary rule must as of necessity be superseded by this paramount consideration.
In R v Jovanovic (2014) 285 FLR 108 at 115; [40], I concluded that the occasions when the courts will not be open for the public to access evidence given – in that case, access to the exhibits tendered and admitted – must be wholly exceptional.
There is, however, no doubt that, in such an exceptional case, the court has an inherent power to close the court and exclude the public, as explained by Hunt CJ at CL in “Mr C” (1993) 67 A Crim R 562 at 564. See also Re JN Taylor Holdings Pty Ltd (In liq) (2007) 62 ACSR 695 at 697; [6].
This is, of course, an ancillary power to meet the needs of the protection of matters of state. Thus, the public interest in the prosecution of Mr Massey can be achieved if the limited protections, such as closing the court, are implemented.
While it is an exceptional power to close a court to the public, this is an appropriate case for its exercise.
Use of Pseudonyms
The second measure is that the undercover police operatives be referred to by pseudonyms.
The first stage is for them to be referred to in the trial by the assumed names under which they operated in their duties. This seems to me to be relatively uncontroversial for that is how Mr Massey would have known them.
The second is that they be referred to by numbers and letters in any published material, such as judgments, media references and the like. This may, in some cases, be controversial. There seemed no controversy in this case.
The court has a power to require a witness to be referred to using a pseudonym.
In Smith at 312, the New South Wales Court of Criminal Appeal said of such a measure:
The use of pseudonyms, supported, where appropriate, by such rulings and directions as may be necessary to give practical effect to the immunity, is a common method of protecting the public interest here involved: see A-G v Leveller Magazine Ltd [1979] AC 440; (1979) 68 Cr App 343 for an example of the use of pseudonyms in a case where the public interest required non-disclosure of identity, see John Fairfax Publications Pty Ltd v Doe (1995) 37 NSWLR 81; 80 a Crim R 414 per Kirby P at 112-113; 444.
This approach has been followed in Witness v Marsden at 440; [49] and R v D1 (No 3) (2010) 202 A Crim R 40 at 45; [12].
In my view, there is power to direct that a witness be referred to by a pseudonym and that, in this case, this is one of the measures that is appropriate to protect the secrecy and confidentiality of the matters of state to which I have referred.
Statutory Power
I have held that the court has power under s 130 of the Evidence Act and, in support of that power under the inherent jurisdiction of the court to make orders to support that statutory power.
It was also submitted that I had power under s 111 of the Evidence (Miscellaneous Provisions) Act 2011 (ACT) to make non-publication orders. That power is wider than the inherent power of the court and binds persons not properly before the court: R v Meegan at [18].
The section is in the following terms:
111 Prohibition of publication of evidence etc
(1) This section applies if a court considers that—
(a) the publication of evidence given, or intended to be given, in a proceeding is likely to prejudice the administration of justice; or
(b) in the interests of the administration of justice the names of any of the following people should not be published:
(i) a party to the proceeding;
(ii) a witness, or intended witness, in the proceeding.
(2) The court may, at any time during or after the hearing of the proceeding, make an order forbidding the publication of—
(a) the evidence or a stated part of the evidence; or
(b) a report of the evidence; or
(c) the name of the party or witness.
(3) The court may make an order under subsection (2) (a) or (b) subject to any stated condition or for any period the court considers appropriate.
(4) If a court makes an order under subsection (2), the court may, if it considers it appropriate, direct that stated people, or everyone except stated people, remain outside the courtroom for a stated period.
(5) For this section, the publication of a reference or allusion to a person is taken to be a publication of the person’s name if—
(a) the reference or allusion discloses the person’s identity; or
(b) the person’s identity might reasonably be worked out from the reference or allusion.
The criterion by which the section may be applied to prevent publication is that non-publication be in the interests of justice. It is important for the evidence before the court to establish the particular statutory test for such an order. See New South Wales v Plaintiff A [2012] NSWCA 248 at [93]-[96]. See also Plaintiff AB v Trustees of the Marist Bros [2014] ACTSC 381 at [16].
I considered the effect of the predecessor to the section, then numbered s 91 of the Act, in R v BR [2010] ACTSC 17 at [21]-[39]. One of the interests that (at [32]) I noted had been recognised as being in the interests of justice was where the life or safety of an important witness may be jeopardised by disclosure. See also, National Companies and Securities Commission v Bankers Trust Australia Ltd (1989) 24 FCR 217 at 221. I do not need to repeat all that I there said. This seems to me to be sufficient for the purposes of this application.
Pre-Trial Orders
The orders and directions sought are those that it would ordinarily be for a trial judge to make for the proper conduct of the trial. Because of the sensitivity and the possibility that there would need to be argument, the application was made prior to the trial. I may or may not be the trial judge.
Case management, even in criminal cases, can justify the making of such an application before the trial as according with good sense.
Such orders are, of course, interlocutory orders and those orders may be varied at trial if, on review, the trial judge considers it appropriate. In this jurisdiction, however, a statutory restraint has been placed on such review in s 76 of the Court Procedures Act 2004 (ACT).
Under that section, orders, ruling or directions made before trial, even by a judge not the trial judge, are binding on the trial judge unless it is, in the trial judge’s opinion, not in the interests of justice that they remain binding.
In this case, of course, the applicant Commissioner, who is neither a party nor a person likely to be present at the trial, would need to be given notice of any proposed review of the orders and directions I have made so as to be heard on why they should remain binding.
Disposition
As a result of my consideration, I was prepared to make orders substantially in accordance with the application. These are my reasons for doing so.
| I certify that the preceding one hundred and nineteen [119] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 30 May 2016 |
2
41
9