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

1. 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.

2. 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.

3. 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.

4. 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.

5. 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 August 2022.

6.   All investigators notes, intelligence reports, COPS entries, and police notes, in relation to the interactions, conversations and meetings between NSW Police and W1, in connection with this matter, from the commencement of his interaction with police to present.

7.   All reports submitted or exchanged, including correspondence, between agents of the NSW Police Force in relation to the decision to utilise W1 in this investigation and prosecution.

8.   All material including police notes and reports in relation to any breach by W1 of the source code of conduct.

9.   All correspondence to and from W1 (or representatives of W1) and NSW Police [NB: the identity of the representative redacted] in relation to W1’s offer of assistance in this matter.

Past Assistance

10.   All documents, including warrants, and controlled operation authorities, evincing W1’s use by law enforcement as a Registered Source / Civilian Source prior to his engagement in this matter.

11.   All letters of assistance and documents/letters in support, provided to/for W1 by NSW Police, prior to his assistance in this matter.” (Emphasis in original)

Partial Production

6. I was informed that some documents had been produced in answer to paragraphs 2, 3, 6, 7 and 9 of the subpoena.

7. The Commissioner, in answer to the subpoena, declined to disclose in open Court whether she had any further documents to produce in answer to the balance of the subpoena.

8. In broad terms, she submitted that a plain reading of the categories of documents called for in the subpoena demonstrated that they were documents, the subject of public interest immunity and, having regard to the specific terms of the paragraphs, any revelation by the Commissioner of whether documents existed or they did not, would have the effect of derogating from that public interest immunity.

Public Interest Immunity

9. The identity of a person who has provided information to police has, as a matter of public policy, been protected against disclosure at least since Marks v Beyfus (1890) 25 QBD 494 at 498. It has been well-recognised as a species of public interest immunity in Australia: see Sankey v Whitlam (1978) 142 CLR 1 at 61, and Cain v Glass (No.2) (1985) 3 NSWLR 230. At [248], McHugh JA noted that the claim for public interest immunity with respect to the identity of a police informant was subject to an exception in criminal proceedings, namely, such identity can be revealed where the disclosure “… is likely to produce evidence leading to the destruction of proof of a prima facie case”. Or else, when the matter is finally before a jury, whether “… the jury might reasonably think that the evidence, which is likely to result from the disclosure, will lead to an acquittal”.

The Indictment

10. The Indictment in these proceedings in which the subpoena was issued charges the Accused with the crime of murder.

11. As part of the proof of the Crown case, the Crown proposes to call an individual known as “Witness 1” or “W1”. It is not in doubt, as explained in the affidavit of Mr Scott Cook APM, an Assistant Commissioner of Police, that Witness 1 has made 33 statements to NSW Police between 23 September 2021 and 14 September 2022 in these proceedings, nor that Witness 1 assisted police as a civilian participant in a controlled operation authorised pursuant to the provisions of the Law Enforcement (Controlled Operations) Act 1997. The Accused is aware of the statements of W1.

12. In an affidavit of Scott Cook, sworn 29 January 2024, which the Court received without any cloak of confidentiality, Mr Cook sets out the following:

“23.   An important part of effective policing is the receipt, on a confidential basis, of information and assistance from those persons involved in criminal activity and/or associated with criminals. If such persons are placed at risk (and the mere revelation of their status as confidential informers or as possible informers places them at risk) then the supply of such information and assistance would diminish or cease. This would undermine the ability of the police to investigate criminal activity.

24.   Accordingly, any requirement that the Commissioner confirm or tend to confirm that any particular person is a confidential informer has a tendency to deter people from providing information to law enforcement agencies and thus a tendency to reduce the effectiveness of those agencies.

25.   The use of confidential informers is a highly effective tool in the investigation and disruption of criminal activity and the gathering of evidence. If the use of informers were compromised by their identities becoming known and/or the full extent of their assistance being revealed, it would hamper the ability of police to prevent and investigate crime.”

Discernment

13. As earlier set out in this judgment, I followed a process of taking evidence, and hearing submissions confidentially.

14. As a consequence, these reasons can only be formulated in general terms rather than by specific reference to any material which may reveal, or tend to reveal, the confidential material: see Gypsy Jokers Motorcycle Club Incorporated v Commissioner of Police (2008) 234 CLR 532; [2008] HCA 4 at [185].

15. I was conscious that in considering the application by the Commissioner for the orders to be sought, that there is a need for a balancing exercise to be undertaken under s 130 of the Evidence Act 1995, which requires the Court to be satisfied that, in the present circumstances, the public interest in preserving secrecy or confidentiality in relation to the category of documents sought by the subpoena, outweighs the public interest requiring the Commissioner of Police to answer the subpoena by indicating whether or not such documents exist. In undertaking the balancing exercise, I am required to take into account those factors as identified in s 130(5) of the Evidence Act as are relevant in the circumstances of this matter: see Attorney General (NSW) v Lipton [2012] NSWCCA 156 at [39].

16. I paid careful consideration to the seriousness of the offence with which the Accused is charged and, accordingly, the importance of his defence being fully informed as to all relevant matters which may lead a jury to conclude that they would not convict him. I also paid careful attention to the public interest as earlier described.

Conclusion

17. In light of all of the material which has been placed before me, I was abundantly satisfied that the administration of justice in these proceedings is properly served by making the orders sought in the Motion. That is because the nature of the categories of documents which are sought may, if they exist, reveal the identity of one or more police informants; or revelation of the fact that such documents do not exist, may also tend to reveal the status of or the existence of police informants.

18. Having regard to the material which I have seen, I was satisfied that requiring the Commissioner of Police to answer the subpoena would prejudice the proper and effective functioning of the NSW Police Force and would be detrimental to the flow of information from individuals to NSW Police with respect to the commission of crimes. It is in the public interest that such information be provided to police.

19. Accordingly, I made orders upholding the Motion and setting aside the subpoena.

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Amendments

24 April 2024 - Coversheet - corrected representation.