R v Simon Lappas and Sherryll Ellen Dowling

[2001] ACTSC 115

R v SIMON LAPPAS and SHERRYLL ELLEN DOWLING [2001] ACTSC 115 (26 November 2001)

Crimes Act 1914, ss 78, 79
Evidence Act (Cth), ss 48, 130, 134, Cl 5 Part 2

REASONS FOR RULING

No. SCC 75-76 of 2001

Judge:          Gray J
Supreme Court of the ACT
Date:           26 November 2001

IN THE SUPREME COURT OF THE     )
  )          No. SCC 75-76 of 2001
AUSTRALIAN CAPITAL TERRITORY )

THE QUEEN

against

SIMON LAPPAS

and

SHERRYL ELLEN DOWLING

RULING

Judge:  Gray J
Date:  26 November 2001
Place:  Canberra

THE COURT DIRECTS THAT:

1. The documents marked MFI 1, MF1 2, MFI 3 and MFI 4 not be adduced as evidence subject to the condition that the prosecution on the charge contained in the second count on the indictment be stayed.

1. In this matter, the second count on the indictment charges that on 12 July 2000 Mr Lappas, for a purpose intended to be prejudicial to the safety or defence of the Commonwealth, communicated to Sherryl Ellen Dowling two documents that were intended to be directly or indirectly useful to a foreign power. Those same two documents are the subject of the sixth count on the indictment that on 12 July 2000 Sherryl Ellen Dowling received those documents, having reasonable ground to believe, at the time she received them, that they were communicated to her in contravention of s 78(1)(b) of the Crimes Act 1914.

The prosecution opening

1. The prosecution opened its case in that part of its case open to the public in respect of these two documents in the following terms:

“Now those – those two documents that are the subject of the second charge are of a – considered by the Crown to be of a degree greater sensitivity than the document that’s the subject to the first charge in this respect.  That the Crown does not intend to tender – that is put into evidence and place before you those second two documents.  The Crown’s intention in presentation of the case is to give you, as it were, empty shells of the documents, photocopies that have all the substantive text obliterated but show how they were laid out and how they were marked, “Top Secret”, “Not To Be Copied,” and so on.  And to lead before you some oral, but it’s of the character of what was contained in them, but in general terms so as not to place before the court the detail of what was contained in them.  But enough of the character, enough of the description in reasonably general terms to enable you to appreciate quite apart from the circumstance that he was inviting Ms Dowling to sell the things, how it would be evident that they would be prejudicial to Australia and helpful to a foreign power.”

1. As I understand the prosecution’s submissions, at the time of opening the case, the prosecution hoped to secure defence assent to the “shell” approach, although it seems pretty clear that such assent was unlikely.  However, the prosecution had put the whole of the documents in evidence, in camera, in the committal proceedings.  As well, access was given to defence counsel which was availed of before the proceedings got underway before the jury.

The taking of the claim for state interest immunity

1. It could be expected after the prosecution opening that the documents would be produced and, indeed, through the first witness called, Federal Agent Lawson, the prosecution produced the documents and sought that they be marked for identification.  Those documents were photocopies and, at a later stage in the first witnesses’ evidence, the originals were also marked for identification.  In the course of his cross-examination of this witness Mr Willee, QC, for Mr Lappas, sought to tender the photocopy documents.  For the first time reference was made by the prosecution to a claim for public interest immunity.  That is, a claim governed by the provisions of s 130 of the Evidence Act (Cth) to exclude from evidence matters of state in the public interest.

1. Because this claim for state interest immunity necessarily would canvass the contents of the documents in respect of which the claim was made, I received evidence and heard argument in respect of this matter in camera.  In giving and publishing these reasons, some aspects of the claim cannot be referred to except in a general way if the claim is to be maintained.  However, I do not consider that constraint detracts from the reasoning which leads to the conclusion to which I have come and that enables me to make public these reasons.

The extent of the claim for state interest immunity

1. The claim was made and supported by an affidavit of a senior government official directly responsible to a Minister of the Crown.  For the purposes of expediency Mr Fagan, SC, who was prosecuting for the Director of Public Prosecutions, represented the senior government official.  However, it should be noted that the claim is not that of the Director of Public Prosecutions.  The claim is the prerogative of the executive government to take steps to preserve the secrecy and confidentiality of documents or information where it is in the public interest.  From the affidavit filed in support, it appears that the claim for state interest immunity in respect of the documents did not actualise until 21 November 2001, the third day of the trial of this matter.

1. The claim, as first made, was a blanket claim, that is that the documents not be adduced as evidence.  Put in that way, no part of the document could be in evidence in the trial.

1. It was then indicated by Mr Fagan, SC that the claim was subject to the exception that “limited disclosure by oral description of aspects of the contents has been cleared as being an acceptable qualification of the claim”.  I was then provided with a very general summary which, by reason of its generality, would not have assisted the prosecution to draw any inferences to support the intent that the prosecution would seek to prove in respect of the charge.  The generality was so great that no names were identified and no events described.

1. Later, I was provided with a form of the documents with much of the contents blacked out.  It was then put that these documents, together with a somewhat more specific descriptive paragraph to explain the blacked contents (by being the subject of oral evidence) “giving the description without actually giving them” as Mr Fagan put it.  This descriptive material to be given by way of oral evidence again fell short of enabling the inferences which the prosecution would seek to draw to be drawn.

The effect of the claim on the proceedings

1. However, Mr Fagan, SC informed me that, as prosecutor, he would seek to overcome this difficulty by calling a witness who, by reference to the text in the documents, would say that a certain construction could be placed upon that text and that would lead to the inference being drawn that the prosecution wished to have drawn.

1. Mr Fagan’s ability to adduce that evidence would, he said, derive from s 48(4) of the Evidence Act (Cth).  That subsection provides:

“A party may adduce evidence of the contents of a document in question that is not available to the party, or the existence and contents of which are not in issue in the proceeding, by:

(a)tendering a document that is a copy of, or an extract from or summary of, the document in question; or

(b)adducing from a witness evidence of the contents of the document in question.”

1. Mr Fagan, SC then said that he would argue that as a result of the claim for state interest immunity being upheld, the document would be “unavailable”.  Clause 5 of Part 2 of the Dictionary in the Evidence Act (Cth) relevantly provides:

“For the purposes of this Act, a document or thing is taken not to be available to a party if and only if:

…

(c)it would be impractical to produce the document or thing during the course of the proceeding;

…”

1. In my view, that provision would not establish the documents as “unavailable”.  In fact the documents have been produced in the course of the proceeding.  The making of a state interest immunity claim does not make it relevantly “impracticable to produce” the document.  Section 48 of the Evidence Act (Cth) is the provision in that Act by which proof may be given of the contents of documents.  Fulfilment of the conditions in s 48(4) is required before oral evidence of the contents of a document can be adduced.

1. Even if such evidence were able to be adduced, it must be evidence of the “contents”.  Such an interpretation involves value judgments as to what the deponent considers should be revealed.  Presumably, there could be no cross-examination on whether that interpretation accurately reflected the contents for that would expose the contents.  Nor could a person seeking to challenge that interpretation give their own oral evidence of the contents for that also would expose those contents.  The whole process is redolent with unfairness. 

1. Finally, s 134 of the Evidence Act (Cth) would preclude the evidence being given in any event.  Section 134 provides:

“Evidence that, because of this Part [Evidence Excluded in the Public Interest], must not be adduced or given in a proceeding is not admissible in the proceeding.”

As the opportunity to utilise s 48(4) of the Evidence Act (Cth) would only arise after I had directed that the document not be adduced as evidence, s 134 would operate to make that evidence inadmissible.

1. Notwithstanding these difficulties that I canvassed with Mr Fagan, SC, and which he recognised, he asked that I determine the state interest immunity claim.  I proceed to do so but I do so against the background of the difficulties to which I have referred. 

State interest immunity

1. Subsection 130(1) of the Evidence Act (Cth) provides:

“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 adduced as evidence.”

This provision involves the balancing of two aspects of the public interest.  On the one hand, the public interest in admitting into evidence information or a document that relates to matters of state and, on the other hand, the public interest in preserving secrecy or confidentiality in relation thereto.

The timing of the claim

1. It is regrettable that the provisions which enable such a claim to be made should, at this late stage, be invoked by the executive government.

1. If the claim had been taken before the committal proceedings in which the documents were tendered in camera to preserve their confidentiality, it would have permitted the prosecution to have proceeded in a different way.  By making the claim at this stage it raises the issue of whether the accused can be afforded a fair trial.  Just as importantly, it would seem to prevent the prosecution from adducing evidence which is highly relevant to its case.

1. It is also a matter of account that at the committal hearing in which the documents were tendered in camera, Mr Lappas faced the equally serious charge, as far as penalty is concerned, of communicating the documents as prescribed documents, an offence under s 79(2) of the Crimes Act 1914. That is not the charge before this court. The charge before this court is one under s 78(1) of the Crimes Act 1914 which requires the prosecution to undertake the burden of proving that the documents were intended by the accused to be useful to a foreign power. The prosecution do not have to undertake that burden in respect of a charge under s 79(2). Proof of that element puts directly in issue the contents of the document.

The importance of the documents in respect of which the claim is made

1. Showing that the contents of the document would, in fact, have been useful to a particular foreign power lies at the heart of the prosecution case in respect of this charge.  The issue of Mr Lappas’ intent in that regard, has never been conceded by him and he also, in fairness, must have the opportunity of challenging any inference that the prosecution says can be drawn from the contents of the documents which might go to prove that intent.

The nature of the assessment

1. It is as well to point out that the claim for state interest immunity involves a different assessment to that which the prosecution is seeking to prove in this prosecution.  It does not follow that if this claim is upheld, the issues relating to the safety or defence of  Australia or the issue relating to the usefulness of the information to a foreign power are necessarily involved in this exercise.  The terms of s 130 of the Evidence Act (Cth), which I am obliged to consider on the question of matters of state, are whether the documents would “prejudice the security, defence or international relations of Australia”. 

1. Subsection 130(5) of the Evidence Act (Cth) provides:

“Without limiting the matters that the court may take into account for the purposes of subsection (1), it is to 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 adduce 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 adducing 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 adduce 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.”

Subsection 130(5) does not limit the matters that I may take into account but I think that both the prosecution and defence agree that the matters set out in subsection (5) are the most relevant to my consideration.

The assessment

1. I have referred to the effect of the claim both on the prosecution case and the defence case.   I do not accept that upholding the claim with the exceptions expressed to it would enable justice to be done to either the prosecution or the defence case.  More particularly, I do not think the accused can have a fair trial unless far more of the text of the documents is disclosed to enable the accused, if he wishes to do so, to give evidence concerning it.

1. Although it is the defence who are seeking to adduce the evidence, I have already referred to the effect of the claim on the prosecution case.  As I see it, the prosecution can only proceed on this aspect if they adduce evidence which s 134 of the Evidence Act (Cth) makes inadmissible if I rule in favour of the claim.

1. It, of course, goes without saying that the nature of the offence to which the documents relate is such that the competing considerations of the public interest that s 130 of the Evidence Act (Cth) seeks to balance are starkly opposed.  That, indeed, brings into sharp focus whether there can be any way of limiting the effect of adducing the documents in evidence.  I think that I must accept that any further disclosure of the contents other than what has been so far proposed will give rise to the apprehensions deposed to.  If that is the view taken by the appropriate government representative, I have no reason to go behind it.  I certainly do not arrogate to myself a decision as to whether the claimed possible consequences of any greater publication of the document than the claimant would permit would, in fact, not take place. 

The result

1. Taking into account the matters to which I have referred, I uphold the claim and direct that the contents of the documents the subject of the claim, not be adduced as evidence.

1. In his submissions, Mr Fagan, SC put three alternatives to me.  First he said that I could uphold the claim for public interest immunity but be satisfied that the trial on the second count may fairly be continued with fair opportunity to Mr Lappas to make his defence based on the limited oral evidence that the prosecution would call on the content of the document.  For the reasons that I have earlier expressed, I do not consider that the prosecution can adduce the evidence that it would wish to.

1. The second alternative related to not upholding the claim.  As I have upheld the claim, that alternative is no longer relevant.

1. The third alternative was that if I were to uphold the claim, I should consider whether the direction is to be made subject to the condition that the prosecution (on this charge) be stayed.  Although the direction in this case, in my view, has an effect not only on the accused receiving a fair trial, but on the prosecution being able to make out its case, the claim of state interest immunity was made  when, in fact, the accused sought to adduce the evidence of the documents.  Accordingly, I consider that I should make the direction subject to the condition that the prosecution on the second charge be stayed.

   I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Ruling herein of his Honour, Justice Gray.

   Associate:

   Date:    26 November 2001

Counsel for the Crown:  Mr D Fagan, SC with Mr G Lalor

Solicitor for the Crown:  Commonwealth Director of Public Prosecutions

Counsel for the first accused:  Mr P Willee, QC with Ms L Taylor

Solicitor for the first accused:  Pappas j Attorney

Counsel for the second accused:  Mr B Salmon, QC with Mr J Sabharwal

Solicitor for the second accused:                   Legal Aid Office (ACT)

Date of hearing:  23 November 2001

Date of judgment:  26 November 2001