R v Rogerson; R v McNamara (No 18) - [2016] NSWSC 40

Supreme Court

New South Wales

Medium Neutral Citation: R v Rogerson; R v McNamara (No 18) [2016] NSWSC 40
Hearing dates: 9 February 2016
Date of orders: 09 February 2016
Decision date: 09 February 2016
Jurisdiction: Common Law
Before: Bellew J
Decision:
See [9]

Catchwords: CRIMINAL LAW – Practice and procedure – Claim by Commissioner of Police for public interest immunity in respect of documents in answer to a subpoena – Necessity to carry out a balancing exercise – claim upheld
Legislation Cited: Evidence Act 1995 (NSW)
Cases Cited: DPP v Smith (1996) 86 A Crim R 308
National Crime Authority v Gould (1989) 90 ALR 489
Sankey v Whitlam [1978] HCA 43
R v Meissner (1994) 76 A Crim R 81
Category: Procedural and other rulings
Parties: Regina – Crown
Roger Caleb Rogerson - Accused
Glen Patrick McNamara – Accused
Representation:
Counsel:
Mr C Maxwell QC - Crown
Mr G Thomas – Accused Rogerson
Ms K Shead – Accused McNamara
Solicitors:
Director of Public Prosecutions - Crown
Katsoolis and Co – Accused Rogerson
Kings Law Group – Accused McNamara

File Number(s): 2014/157408; 2014/156921
Publication restriction: Nil

Judgment – EX TEMPORE (REVISED)

On 8 February 2016, at the request of the legal representatives of the accused McNamara, I issued a subpoena directed to the Commissioner of the New South Wales Police returnable today. The schedule to that subpoena is in the following terms:

“A copy of all documents concerning assistance/benefit/inducement or otherwise, whether sought, offered or provided from/by New South Wales Police to Chun Lok Lam (prosecution witness).

A copy of all documents concerning assistance/benefit/inducement or otherwise, whether sought, offered or provided from/by New South Wales Police to Chun Kit Lam (prosecution witness).

A copy of all documents relating to information provided to the New South Wales Police by Chun Lok Lam (prosecution witness) concerning the Triads or other Asian groups.

A copy of all documents relating to information provided to the New South Wales Police by Chun Kit Lam (prosecution witness) concerning the Triads or other Asian groups.

A copy of the subpoena”.

By notice of motion filed in court today, the Commissioner of Police for New South Wales seeks, amongst other things, an order excusing him from producing any document caught by the subpoena that is properly the subject of a claim for public interest immunity. In support of that notice of motion, I have received two affidavits. The first is an open affidavit of Assistant Commissioner Walton of 9 February 2016 to which Ms Shead, who appears for the accused McNamara, has had access. I have also been provided with a confidential affidavit of Assistant Commissioner Walton of the same date. That affidavit has not been provided to the parties.
The procedure of providing a confidential affidavit to the Court but not to the parties is one which is recognised as being appropriate in cases where a claim for public interest immunity is made: see for example The Queen v Meissner (1994) 76 A Crim R 81

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.

Continue reading R v Rogerson; R v McNamara (No 18)

Details

AGLC: R v Rogerson; R v McNamara (No 18) [2016] NSWSC 40
Case: [2016] NSWSC 40
Decision Date: 09 February 2016

CaseChat Overview and Summary

The respondents, Rogerson and McNamara, were convicted for their involvement in a number of armed robberies. The Commissioner of Police applied for public interest immunity over certain documents that were ordered to be produced in answer to a subpoena. The applicants sought orders that the Commissioner produce the documents, arguing that the public interest in the administration of justice outweighed the public interest in withholding the documents. The applicants further submitted that the Commissioner had failed to carry out a proper balancing exercise.

The court considered whether the Commissioner had carried out a proper balancing exercise. The court considered the nature of the documents, the purpose for which they were sought, and the interests of the parties. The court found that the Commissioner had carried out a proper balancing exercise and had considered all relevant factors. The court found that the public interest in withholding the documents outweighed the public interest in their production.

Accordingly, the court dismissed the application. The court found that the Commissioner was entitled to rely on public interest immunity in respect of the documents in question. The court found that the Commissioner had properly considered the interests of the parties and had carried out a proper balancing exercise. The court found that the public interest in withholding the documents outweighed the public interest in their production. The court made no orders in relation to the application.

Orders