Regina v Amir Ibrahim El Mostafa and Saleh Khodr

[2007] NSWDC 334

CITATION:	Regina v Amir Ibrahim El Mostafa and Saleh Khodr [2007] NSWDC 334
HEARING DATE(S):	Please see Regina v Amir Ibrahim El Mostafa [2007] NSWDC 219 for hearing dates.
JUDGMENT DATE:	16 May 2007
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ at 1
DECISION:	Application for public interest immunity granted.
CATCHWORDS:	Criminal law - Evidence - Witness - Public interest immunity - Identity of police informer/community spokesperson
LEGISLATION CITED:	s130 Evidence Act 1995
PARTIES:	Regina Amir Ibrahim El Mostafa Saleh Khodr
FILE NUMBER(S):	06/11/0574; 06/21/0047
COUNSEL:	Mr Calvert for the Crown Mr Simpson for Amir Ibrahim El Mostafa Dr Webb for Saleh Khodr
SOLICITORS:	Ms Flemming for the NSW DPP Ms Duffy for Amir Ibrahim El Mostafa Mr Rahme for Saleh Khodr

JUDGMENT

1. In this matter a witness Miss Al Hinti was giving evidence on 14 May 2007. She attended the police station at Auburn on the night of 30 January and the early morning of 31 January 2005. She attended in the capacity of her role as an ethnic community liaison officer.

2. One of the most important tasks which she had in that capacity was liaison and enhancing the relationship between the police and the community. It was a particularly challenging role in respect of the Arabic speaking community around Auburn at that particular time and she had been somewhat successful in building up that liaison between the police and members of that community.

3. She was asked by the Crown Prosecutor in re-examination concerning her attendance at the police station that evening whether one person there acted as a spokesperson for the mostly Shi'ite members of the community who were at the police station that night. She said "Yes" and said that she knew the name of that person. When asked by the Crown Prosecutor to provide the name, she said, "I can't discuss this information I am afraid at this time".

4. There was then a brief discussion about whether or not there would be an application for public interest immunity in respect of that answer. That application has been formalised today with Mr Bourke appearing on behalf of the Commissioner of Police and making an application under section 130(4)(e) of the Evidence Act 1995 for a direction from me that the answer to the question "Who is the spokesperson?" not be adduced in evidence from Miss Al Hinti. The basis, as I have said, is that the evidence would relate to matters of state in the sense that it would disclose or enable someone to ascertain the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the state.

5. Mr Bourke adduced evidence from Miss Al Hinti and tendered as exhibit 1 a handbook in respect of local ethnic community liaison officers. Miss Al Hinti, amongst other things, in evidence when asked what the consequences of disclosure of the name would be, said that it would jeopardise the relationship which she had so far built up with some struggle. The nature of her role had been new and it could jeopardise her successor. One of the most important aspects of her role was allowing members of the community to communicate effectively with the police. If she were to disclose the name of that person, it would jeopardise that relationship between an element of the community at Auburn, or at least in the Flemington Local Area Command, and the police. It would also engender some degree of mistrust and would have a great and unfortunate impact if the name were to be disclosed.

6. The forensic purpose so far as the Crown is concerned in wanting to adduce the evidence is to deal with a possible submission, indeed a likely submission from defence counsel, that there has been a degree of collusion between witnesses who were present at the police station that night. The absence of the person whom the jury have heard is the spokesperson may result in defence counsel inviting the jury to infer that such a person has not been called by the Crown and would therefore be unhelpful to the Crown.

7. In my opinion the impact of an order to disclose the name outweighs the importance of its disclosure. Important as it is to the Crown, the sanctity of confidential police informers has been protected by the courts for decades. This appears to me on the evidence to be an example of a relationship between the police and a member of the community who is also a source of information which would be jeopardised. More importantly, if I ordered the disclosure in this case, it would have a wider impact and other people would be less inclined to step into that role of assisting the police in that regard. Accordingly I direct that the answer to the question "Who was the spokesperson that night at the Auburn Police Station?" not be adduced as evidence.

oOo