R v Pratten (No 18)

[2015] NSWSC 902

Supreme Court

New South Wales

Medium Neutral Citation:	R v Pratten (No 18) [2015] NSWSC 902
Hearing dates:	3 July 2015
Date of orders:	07 July 2015
Decision date:	08 July 2015
Jurisdiction:	Common Law
Before:	Rothman J
Decision:	See [36]
Catchwords:	EVIDENCE – claim for public interest immunity over documents sought by accused – public interest in maintaining working relationship between law enforcement agencies in Australia and Vanuatu – disclosure of documents not in public interest for administration of justice as documents not assist accused’s case any more than is currently available – claim for public interest immunity upheld
Legislation Cited:	Mutual Assistance in Criminal Matters Act 1987 (Cth) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Alister v The Queen [1983] HCA 45; (1983-1984) 154 CLR 404 Sankey v Whitlam (1978) 142 CLR 1 Styles v Clayton Utz [2011] NSWSC 1314
Category:	Procedural and other rulings
Parties:	Regina (Crown) Commonwealth of Australia Timothy Charles Pratten (Accused)
Representation:	Counsel: M. McHugh SC with/TA Berberian (Crown) A. Markus (Commonwealth of Australia) S. Grant with/B. Dean (Accused)   Solicitors: Commonwealth Director of Public Prosecutions (Crown) Australian Government Solicitor (Commonwealth of Australia) O’Brien & Hudson Solicitors (Accused)
File Number(s):	2010/00315475

Judgment

1. HIS HONOUR: The Court is required to deal with an issue relating to the production of documents. The documents have been sought in two subpoenae issued by the Court at the request of the accused.

2. The parties have resolved most of the issues between them, for which all of the parties should be congratulated, but there remains one outstanding issue relating to documents over which the Commonwealth claims public interest immunity. I should, at this point, clarify that it is the list itself which the accused seeks production of and over which the Commonwealth claims public interest immunity. The documents that are listed are not in the possession of the Commonwealth. Some explanation is required.

3. As is clear from earlier judgments of this Court, the accused is charged with 7 counts of dishonestly obtaining a financial advantage from the Commonwealth by deception. The dishonest deception (if that not be a tautology) involves the knowing lodgement of a tax return for each of seven years disclosing a deliberately understated amount of income. That is the allegation which the Crown must prove in each charge.

4. The financial affairs of the accused were, at least to some extent, allegedly conducted from or related to Vanuatu. As a consequence, the Commonwealth, through the Australian Federal Police (AFP), requested the cooperation of the Vanuatu Government and its law enforcement agencies in the execution of search warrants on various persons or entities in Vanuatu relating to the charges against the accused (and charges against other persons). Search warrants were executed and documents seized.

5. The mutual assistance request to Vanuatu was made under the Mutual Assistance in Criminal Matters Act 1987 (Cth) and was initially made on 7 April 2008. Supplementary requests were made on 17 April 2008 and 29 April 2008. Each of the requests asked for the execution of search warrants (at least so far as is relevant to these proceedings).

6. Between 28 April 2008 and 2 May 2008, officers of the AFP attended locations in Vanuatu in the company of members of the Vanuatu Police Force, who were executing the search warrants pursuant to the request for mutual assistance, which had been agreed. The officers of the AFP attended for the purpose of offering advice in relation to items seized.

7. Apparently a volume of material was seized by the Vanuatu Police Force and, during the process of seizure, a “working log” was created to keep track of the material. This working log was not formally a Property Seizure Record, but it had some details that are common to Property Seizure Records, including details such as the item number that corresponds to the Property Seizure Record number, the date seized and a brief description of the item.

8. An officer of the AFP obtained electronic copies of the working logs on a memory stick. The AFP officer obtained these logs from the Vanuatu Police Force, or an officer thereof, on a Police to Police basis.

9. On 20 December 2008, the officers of the AFP returned to Australia. In or around January 2009, an entity or entities affected by the seizures challenged the width of the seizure and contested that at least some of the documents seized were outside the parameters of the search warrants. This challenge was taken in the Vanuatu courts. The working log was divided into two separate lists being documents that were contested and documents that were not contested. Together both lists comprise confidential exhibit IRSM2 to the affidavit of Ian McCartney sworn 2 July 2015. Mr McCartney is Acting Deputy Commissioner of the AFP.

10. The working log and the two lists forming IRSM2 are each the subject of a claim for public interest immunity.

11. It is necessary to recite that, as a consequence of the challenge by entities in Vanuatu to the seizure, the Court of Appeal of the Republic of Vanuatu issued orders and reasons for judgment, which are before the Court. Exhibit A in these preliminary hearings includes the search warrant issued by, or under the authority of, the Supreme Court of the Republic of Vanuatu, at the request of the Australian Government and the reasons for judgment and orders of the Court of Appeal of the Republic of Vanuatu.

12. In effect, the Court of Appeal held that the issue of a search warrant pursuant to the mutual assistance regime was reviewable in the Supreme Court of the Republic of Vanuatu. As a consequence of the judgment of the Court of Appeal, the challenge or review of the search warrant was heard by the Supreme Court.

13. On 26 March 2012, the Supreme Court of the Republic of Vanuatu issued orders, the effect of which was to set forth a timetable for the hearing of the review/challenge to the seizure and to restrain the Vanuatu Police Force from providing to Australia, pursuant to the mutual assistance, the documents (or copies of the documents) which are the subject of proceedings before the Vanuatu Supreme Court.

14. As a consequence of the foregoing, the documents themselves (at least those that are contested) are not able to be produced by the Commonwealth. However, due to its involvement in the seizure of the documents, the Commonwealth has a list of the documents over which there is a dispute in Vanuatu. The accused seeks production/inspection of that list.

15. The principle that must be applied in determining a claim for public interest immunity in relation to privilege from inspection are well established and, generally, uncontroversial. Those principles were considered by the High Court in Sankey v Whitlam (1978) 142 CLR 1 and further discussed in the Ananda Marga case (Alister v The Queen [1983] HCA 45; (1983-1984) 154 CLR 404). As was stated by Gibbs CJ in Alister v The Queen, at 412 of the report:

“Sankey v Whitlam establishes that when one party to litigation seeks the production of document, and objection is taken that it would be against the public interest to produce them, the court is required to consider two conflicting aspects of the public interest, namely whether harm would be done by the production of the documents, and whether the administration of justice would be frustrated or impaired if the documents were withheld, and to decide which of those aspects predominates. 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.”

16. In relation to the principles governing a claim for public interest immunity, see also the discussion in the judgments of Wilson and Dawson JJ in Alister v The Queen at 434 and following and the judgment of Brennan J in the same case at 451 and following.

17. In the present application, the Court has inspected the documents over which public interest immunity is claimed. The question that I must ask is whether disclosure will result in damage to the public interest and, if so, whether the public interest in the disclosure of relevant material, assuming it is a document that would materially assist the case of the accused, outweighs the damage to the public interest.

18. The antecedent question upon which all else depends is whether the documents would assist the accused’s case.

19. The public interest that is claimed is said to rest upon the damage that would be occasioned to the productive working relations between Australia and Vanuatu, and also to the more general relationship between Australia and other nations, at least nations in the Asia/Pacific region.

20. Mutual assistance between governments in criminal investigations and prosecutions is an important element of the administration of justice and of the relations between law enforcement agencies. Particularly in modern times, many crimes have an international aspect, be it in the areas of financial crime or the importation of illicit substances. The Court, given these matters, including the matters to which Mr Faris attests in his affidavit of 2 July 2015, accepts that it is important for Australia to maintain a good Police to Police working relationship with Vanuatu and other Pacific nations. The maintenance of that relationship depends, amongst other things, on the capacity of each law enforcement agency to have confidence that conduct of another agency will not jeopardise its capacity to conduct itself in a manner consistent with the law as it applies to that agency.

21. In this matter, the Vanuatu Police Force has requested Australia not to release the list of contested documents on the basis that it could be seen to be in breach of the orders of the Supreme Court of Vanuatu, which would jeopardise its capacity to abide by its own laws and participate in the Vanuatu proceedings.

22. Mr Faris attests that the disclosure of the confidential exhibit would cause the certain damage to the working relationship between Australia and Vanuatu. I recite an extract of the affidavit disclosing what is said to be that damage:

“[24] If Australian authorities failed to respect the objection made by them and disclosed the contents of the log in any way, the failure would be damaging to the international crime cooperation relationship between the two countries. Any disclosure could reasonably be expected to result in Vanuatu declining to further progress the litigation to obtain the restrained documents. If Australian authorities compromised the legal proceedings in Vanuatu through disclosure, I would be concerned that Vanuatu might not afford the level of assistance it is currently providing to Australia in the future.

[25] The Department’s International Crime Cooperation Division, of which the Central Authority is a part, participates in a range of regional law enforcement activities, including assisting Pacific neighbours’ capacity building in international crime cooperation activities. From my experience in international work in the Pacific region, I believe that Pacific countries share information and views on the way in which Australia engages with them. I consider that damage to the relationship of trust between Australia and Vanuatu could create a real risk of Australia’s reputation being diminished more broadly in the Pacific region.

[26] Many types of modern criminal activity affecting Australia’s national interests have an international character. In that context, the provision and receipt of assistance between Australian agencies and similar agencies in other countries is essential. It is critical to maintain good working relationships with foreign governments and international agencies in order to effectively tackle transnational crime. A foreign government must be confident that its own court processes in executing an Australian request will not be prejudiced by any actions of Australian authorities in Australian proceedings.”

23. While there has been some suggestion that cross-examination on an affidavit such as that to which Mr Faris or Mr McCartney attest is restricted, it is not impossible. Nevertheless, no attempt at cross-examination occurred. I do not regard the lack of cross-examination as, of itself, conclusive or persuasive. Ultimately, the comment recited above is a conclusion and it is for the Court to determine for itself the conclusion to which Mr Faris attests.

24. On the material before the Court, the Court is satisfied that it would be injurious to the public interest to disclose the documents, bearing in mind only the public interest that the Commonwealth asserts and not the public interest associated with the administration of justice. I next turn to the balancing exercise associated with the fair administration of justice.

25. As earlier stated, the document in question lists and describes a number of documents. The source documents that are listed in the document which the accused seeks to have produced are, as earlier stated, not available.

26. It is necessary to deal with some aspects of the issues that will arise in these proceedings. As previously stated, they concern an allegation of deliberately understating the amount of income on tax returns.

27. One of the matters that the Crown must prove is that the amount that ought to have been declared in the tax returns was income in the hands of the accused.

28. Such an allegation involves the proposition that the amounts were not loans to the accused; were not monies paid for the benefit of an entity other than the accused; were not the distribution of a trust to persons who were beneficiaries of the trust other than the accused; were not the payment of monies accumulated in earlier years on which income tax had been paid; were not the payment of capital; and other like issues.

29. I understand that the accused will allege, amongst other things, that some of the amounts, at least, were loans, repayable by the accused, and therefore not income.

30. The existence of documents, other than those produced by the Crown, dealing with the relationship between various entities is a matter upon which the accused can rely to show that there may be reasonable hypotheses inconsistent with guilt arising from transactions that the Crown will seek to have a jury find were the receipt of income.

31. If the list of documents or working log, by their descriptions of other documents or otherwise, were considered to assist in enumerating that some further documents were loan documents or documents relating to capital distributions or the like (see above), then in my view the public interest in the disclosure of the list may arguably be greater than the damage occasioned to the relationship between the respective law enforcement agencies and governments.

32. However, the list and working log, in describing the documents, describes them in such general terms that those documents, without the documents listed therein, does not add to the capacity of the accused to put to a jury the hypotheses earlier mentioned, or affect the case the accused could put.

33. In those circumstances and balancing the relevant public interests, I do not consider that the public interest in the fair administration of justice outweighs the interest that has given rise to the immunity. Indeed, I consider that the public interest in the immunity outweighs any assistance that could be gained from access to the list and working log.

34. As is obvious from the foregoing, I have taken into account that these are criminal proceedings for seven serious offences under Commonwealth law and it is the accused that seeks production. Further, I have had regard to the importance of the information, which I do not consider great, given the use to which the confidential documents could be put.

35. These issues arise by operation of r 1.9 of the Uniform Civil Procedure Rules 2005 (UCPR) and the definitions of Schedule 11, which applies s 130 of the Evidence Act 1995 to the production of documents and access (see Styles v Clayton Utz [2011] NSWSC 1314), as well as by the common law principles. Ultimately, whether s 130 of the Evidence Act or the common law principles were to apply, the outcome is the same.

36. Given the foregoing reasons, I uphold the claim for public interest immunity and set aside the subpoena insofar as it describes the aforesaid documents. The Court will return confidential exhibit IRSM2 and the documents described as the working log provided to the Court for inspection for the purposes of dealing with this application.

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Decision last updated: 14 July 2015