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)

1. 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:

1. “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).

2. 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).

3. 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.

4. 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.

5. A copy of the subpoena”.

2. 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.

3. 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; DPP v Smith (1996) 86 A Crim R 308; National Crime Authority v Gould (1989) 90 ALR 489. Consistent with that procedure, Ms Shead has not sought, and indeed would not be ordinarily entitled, to cross-examine Assistant Commissioner Walton on the contents of his confidential affidavit. That course may be adopted in rare or exceptional cases, but it has not been the subject of an application in this particular case.

4. I have read the confidential affidavit detail. It annexes two documents which, I am informed by Ms Kumar who appears for the Commissioner, constitute the sum total of the documents and which, but for the current notice of motion, would otherwise be produced in response to the subpoena. For obvious reasons, it is inappropriate for me to detail the nature and content of those documents.

5. Ms Shead has indicated to me that the underlying purpose of seeking production of the material set out in the schedule to the subpoena is to, in effect, explore any information provided by either or both of the two witnesses named as to their membership of Triad groups, or their association with the members of those groups. Without disclosing the content of the documents, Ms Kumar submitted that even if the documents in question contained information of that nature, such information was not severable from those parts of the documents which contained the material which was the subject of the claim and that accordingly, the orders sought should be made.

6. In circumstances such as the present case, I am required to conduct a balancing exercise, the nature of which is set out in s. 130 of the Evidence Act 1995 (“the Act”). Those provisions reflect the common law as articulated by the High Court in Sankey v Whitlam [1978] HCA 43, especially at 38. The balancing exercise requires, amongst other things, that I take into account the importance of the information or the document in the proceeding, the nature of the offence, the likely effect of adducing the evidence and whether or not the substance of the information has already been published. Those considerations are mandatory, although they are not exhaustive.

7. Having read the material over which the claim is made, I can safely state that it does not go to either of the issues articulated by Ms Shead. However and again without disclosing its content, what the material does is disclose information of a highly confidential and sensitive nature.

8. Having regard to the contents of the confidential affidavit of Assistant Commissioner Walton, I am satisfied that the public interest in making the material available is outweighed, and outweighed significantly, by the public interest in preserving its secrecy and confidentiality. As I have said, it would be inappropriate for me to go any further and run a risk of providing any detail of the material over which the claim is made.

9. Taking all of those matters into account, I have come to the view that the order sought by the Commissioner should be made. Accordingly, I make the following orders:

1. I grant leave to the Commissioner of the New South Wales Police to file in court a notice of motion dated 9 February 2016, along with the open affidavit of Assistant Commissioner Walton of 9 February 2016, and the confidential affidavit of Assistant Commissioner Walton of the same date.

2. In respect of the subpoena to produce issued to the Commissioner at the request of the accused Glen Patrick McNamara on 8 February 2016, the Commissioner is excused from producing any document that is properly the subject of a claim for public interest immunity, including annexures B and C to the confidential affidavit of Assistant Commissioner Walton.

10. I note that I have returned the confidential affidavit of Assistant Commissioner Walton to counsel for the Commissioner, on the understanding that should any issue in relation to this notice of motion arise in the future it can be produced at short notice

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Decision last updated: 23 April 2018