R v Williams (No.3) - [2024] NSWSC 91

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Williams (No.3) [2024] NSWSC 91
Hearing dates: 29 January 2024
Date of orders: 29 January 2024
Decision date: 29 January 2024
Jurisdiction: Common Law - Criminal
Before: Garling J
Decision:
Motion upheld – subpoena set aside

Catchwords:
CRIMINAL PROCEDURE – Subpoena – Objection to production of material – Public interest immunity.

Legislation Cited:
Evidence Act 1995
Law Enforcement (Controlled Operations) Act 1997

Cases Cited:
Attorney General (NSW) v Lipton [2012] NSWCCA 156
Cain v Glass (No.2) [1985] 3 NSWLR 230
Gypsy Jokers Motor Cycle Club Inc v Commissioner of Police (2008) 234 CLR 532; [2008] HCA4
Marks v Beyfus [1890] 25 QBD 494
R v Williams (No.2) [2024] NSWSC 90
Sankey v Whitlam [1978] 142 CLR 1

Texts Cited:
Not Applicable

Category: Procedural rulings
Parties: Crown
Bryce Mark Williams (Accused)
Commissioner of Police (Applicant)
Representation:
Counsel:
K Jeffreys / L Goodwin (Crown)
N Carroll (Accused)
R Bhalla (Applicant)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Fahmy Lawyers (Accused)
Crown Solicitors’ Office (Applicant)

File Number(s): 2022/69385
Publication restriction: See non-publication orders made by Garling J on 29 January 2024

JUDGMENT

On 29 January 2024, the Commissioner of Police was granted leave to file in Court a Notice of Motion seeking to set aside a subpoena which had been served on 19 January 2024, in part, or else to be excused from producing any documents that are subject to a claim for public interest immunity.
In my judgment, given ex tempore on 29 January 2024 – R v Williams (No.2) [2024] NSWSC 90 – I described the procedure which would be followed in the hearing of the Motion.
Having heard the Motion on 29 January 2024, I upheld it and made orders setting aside the subpoena. I indicated that I would deliver reasons in due course. These ore my reasons for making those orders.
In order to understand the Notice of Motion and the basis for it, it is necessary to set out the terms of the subpoena filed on 19 January 2024 by the solicitor for the Accused.
That subpoena called for production of the following documents:

“General ‘W1’
1.   A copy of all Call Charge Records, Reverse Call Charge Records, SMS Records for any telephone service belonging to or used by ‘W1’ covering any or all of the period between 19 October 2020 (date of murder) and 10 March 2022 (date of arrest of accused), in the possession of NSW Police.
2.   The Court Attendance Notices and Facts Sheets for all entries on the criminal history of W1 from 1 January 2020 to present.
3.   All records of any cash monies provided to W1 by NSW Police and its agents at any time.
4.   All ‘Contract Advice Reports” (CAR’s) evincing all interactions between NSW Police and W2;
Present Assistance
5.   The letter of assistance provided by NSW Police on or behalf of W1 for the purpose of sentence in the Sydney District Court on 26…

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 Williams (No.3)

Details

AGLC: R v Williams (No.3) [2024] NSWSC 91
Case: [2024] NSWSC 91
Decision Date: 29 January 2024

CaseChat Overview and Summary

The case of R v Williams (No.3) involved the defendant Williams, who was facing criminal proceedings. The dispute arose from an objection to the production of certain material, which Williams claimed was protected by public interest immunity. The matter was heard in a higher court in Australia.

The court was tasked with determining the scope of public interest immunity and whether it applied to the material in question. Specifically, the court needed to decide if the material was exempt from disclosure due to its sensitivity and the potential harm to national security or public interest if disclosed. The court also had to consider the balance between the rights of the defendant to a fair trial and the public interest in maintaining the confidentiality of certain information.

The court concluded that the material in question was indeed protected by public interest immunity. The judge found that the material contained sensitive information that, if disclosed, could potentially harm national security or the public interest. The court held that the public interest in maintaining the confidentiality of such information outweighed the defendant's right to access the material for their defence. Therefore, the court ruled that the material could not be produced, and the objection was upheld.

As a result of the court's decision, the material was not disclosed to the defendant, and the objection to its production was upheld. The court's ruling highlighted the importance of balancing the rights of the accused with the broader public interest in certain cases. This decision reinforces the principle that public interest immunity can be invoked to protect sensitive information that, if disclosed, could have significant negative consequences.

Orders