Sahadi and Savva and Anor
[2016] FCCA 589
•18 March 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SAHADI & SAVVA & ANOR | [2016] FCCA 589 |
| Catchwords: FAMILY LAW – Release of Family Report in criminal proceedings – implied obligation of being provided with the Family Report – genuine belief of investigating police officer. |
| Legislation: Family Law Act 1975 (Cth), s.121 Federal Circuit Court Rules 2001 (Cth), r.1.05-1.07, 2.08, 15.10 and 23.01 |
| Cases cited: Thornton & Workcover Corporation of South Australia (2009) FamCA 449 Tudway & Tudway & Anor [2015] FamCA 933 Commissioner of Taxation & Darling [2014] FamCAFC 59 Hogan v Hinch (2011) 243 CLR 506 |
| Applicant: | MS SAHADI |
| Respondent: | MR SAVVA |
| Intervenor: | THE COMMISSIONER NEW SOUTH WALES POLICE |
| File Number: | SYC 2338 of 2011 |
| Judgment of: | Judge Kemp |
| Hearing date: | 10 March 2016 |
| Date of Last Submission: | 16 March 2016 |
| Delivered at: | Sydney |
| Delivered on: | 18 March 2016 |
REPRESENTATION
| Counsel for the Intervenor: | Ms Gersace |
| Solicitors for the Intervenor: | NSW Crown Solicitor |
| Counsel for the Applicant: | Mr Dura |
| Solicitors for the Applicant: | Swifte Law |
| Solicitors for the Respondent: | Barber & Massey |
THE COURT ORDERS THAT
The Commissioner New South Wales Police (“NSW Police”) be joined as an intervenor on an application for the release of the report of Dr C dated 14 November 2013 released to the father and the mother on 2 December 2013 (“the subject report”).
The application of The Commissioner NSW Police for the release of the subject report is to be heard without the need for a formal application or response.
The Commissioner NSW Police be granted leave to provide a copy of the subject report, redacted in terms of order 4 below, to the following persons solely for the purposes of the proceedings referred to in (h) below, and further subject to order 5 below:
(a)Mr Savva (“the father”) and/or his legal representative;
(b)Ms Sahadi (“the mother”) and/or her legal representative;
(c)Mr A (the mother’s brother) (“Mr A”) and/or his legal representative;
(d)Mr M (“Mr M”) and/or his legal representative;
(e)Mr W (“Mr W”) and/or his legal representative;
(f)Mr J (“Mr J”) and/or his legal representative;
(g)The office of the Director of Public Prosecutions (“the DPP”); and
(h)The judicial officer presiding in the criminal proceedings involving the abovementioned persons listed for hearing in the Supreme Court of New South Wales commencing on 4 April 2016 (“the Supreme Court proceedings”).
The subject report be redacted by:
(a)deleting the identity and any identifying details of Ms G and that of her family; and
(b)deleting the name of the child of the father and the mother and the child’s birth date.
The Commissioner NSW Police is to obtain prior to the provision of a copy of the subject report to the persons named in the above order 3(c)-(f) inclusive, the following:
(a)An undertaking in writing from such persons to this Court to be filed in the Registry not to release the contents of the subject report to any person, save a legal representative retained by that person in the Supreme Court proceedings, without further leave of this Court; or
(b)If no undertaking in writing is provided in terms of (a) above, then, in terms of The Commissioner’s undertaking to this Court, the making of an application to the Supreme Court of NSW, to obtain from that Court an order directed to any such person not to publish the contents of the subject report and for its use only in the Supreme Court proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Sahadi & Savva & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 2338 of 2011
| MS SAHADI |
Applicant
And
| MR SAVVA |
Respondent
And
| THE COMMISSIONER NEW SOUTH WALES POLICE |
Intervenor
REASONS FOR JUDGMENT
Background
On 8 September 2015, the New South Wales Police (“NSW Police”) forwarded a covert enquiry to the National Enquiry Centre. That enquiry was forwarded to my chambers, as it concerned a matter which was then listed in my docket.
Due to my absence from Court, my associate caused that enquiry to be provided to His Honour Judge Brewster, who, at that time, was sitting in the Sydney registry.
Judge Brewster considered that enquiry and provided the following consent on 14 September 2015:
Detective Mr L
The Court has approved your request. You may inspect and copy the file. Please contact Judge Kemp’s chambers on (omitted) to make the appropriate arrangements.
Judge Brewster
On 19 January 2016, the NSW Police contacted my associate and indicated that they wished to serve the report of Dr C (“Dr C”) dated 14 November 2013 released to the father and the mother on 2 December 2013 (“the subject report”) on various persons involved in a criminal matter which also involved both the father and the mother. Those persons were identified as follows:
a)Mr Savva (“the father”) and/or his legal representative;
b)Ms Sahadi (“the mother”) and/or her legal representative;
c)Mr A (the mother’s brother) (“Mr A”) and/or his legal representative;
d)Mr M (“Mr M”) and/or his legal representative;
e)Mr W (“Mr W”) and/or his legal representative;
f)Mr J (“Mr J”) and/or his legal representative; and
g)The office of the Director of Public Prosecutions (“the DPP”).
On 21 January 2016, my associate contacted the father’s and the mother’s legal representatives advising them of the request from the NSW Police and advising that if there was no written opposition received by the Court prior to 28 January 2016, the Court would authorise the release of the subject report to the persons identified in paragraph 4 above.
On 25 January 2016, the father’s legal representatives indicated by email that the father objected to the release of the subject report to the persons identified in paragraph 4 above. A request was then made by my associate to the father’s legal representatives for any written grounds of objection to be provided within 7 days.
On 27 January 2016, the mother’s legal representatives indicated by email that the mother, similarly, also objected to the release of the subject report and sought 7 days to provide her written grounds of objection.
On 29 January 2016, the father forwarded his written submissions and they were as follows:
(1)The request for service of the subject report does not disclose any legitimate forensic purpose for its release.
(2)The service of the subject report on the persons named in the request save and except for the father and/or his legal representative and the mother and/or her legal representative serves no legitimate forensic purpose.
(3)The relevance of the subject report to any matter of interest to or concerning any of the people named in the request other than the father and the mother has not been established.
(4)The request for the subject report is in the nature of a fishing expedition.
(5)The subject report is a confidential document prepared for family law parenting proceedings between the mother as applicant and the father as respondent with respect to their child, X, born (omitted) 2007 (“the child”).
(6)The subject report was prepared pursuant to orders made by this Court on 5 March 2013 to address the specific issues noted by the Court in order 2(a) of the orders made on 5 March 2013.
(7)None of the persons named as those on whom the NSW Police requests the Court to serve the subject report save and except for the father and the mother have any legitimate interest whatsoever in the subject matter of the subject report generally or specifically as it is limited to the issues noted by the Court on 5 March 2013. The “catch all” issue (v) is limited to the context of the proceedings and matters relevant to the care, welfare and development of the child.
(8)The subject report was released by the Court at Sydney on 2 December 2013 pursuant to Rule 15.10 of the Federal Circuit Court Rules 2001 (“the FCC Rules”). The release of the subject report was restricted to:
(i)the parties;
(ii)the parties lawyers;
(iii)the child representative.
(9)The confidential nature of the subject report was expressly recognised by the Court in the notice releasing the subject report.
(10)Section 121 of the Family Law Act 1975 (“the Act”) expressly prohibits publication of any account of proceedings or of any part of proceedings under the Act that identifies a party to the proceedings, a person who is related to, or associated with a party to the proceedings or a witness in the proceedings.
(11)The release of the subject report to anyone other than the parties to the proceedings and their legal representatives amounts to the dissemination to a section of the public of a document that offends each and every aspect of Section 121 of the Act by identifying the parties to the proceedings, the child the subject of the proceedings and the expert, a potential witness in the proceedings.
(12)The service of the subject report as requested save and except for the father and the mother does not fall within any of the relevant exceptions in Section 121(9) of the Act, as follows:
(a)the communication is sought to be to persons other than those concerned in the proceedings;
(aa)it is not a communication to an authority of a State or Territory that has responsibility relating to the welfare of children;
(b)it is not a communication to a body that is responsible for disciplining members of the legal profession in the State or Territory;
(c)it is not disclosure to a body that grants assistance by way of Legal Aid;
(d)the Court has not directed the publication of the subject report and indeed has expressly prohibited it by the notice authorising the release of the report;
(da) …..
(e)the release of the subject report is not intended primarily or at all for use by members of any profession so as to form part of a law report or other publication of a technical nature;
(f)the release of the subject report is not a dissemination of the subject report to any of the persons named in that sub-section;
(g)….
(13)Section 121 of the Act is clearly intended to protect the privacy of the persons involved in the parenting proceedings before the Court. The confidentiality of these proceedings, particularly as they are proceedings in relation to a child aged 8 years, must outweigh any other consideration.
(14)The subject report has not yet been received into evidence before the Court.
(15)The contents of the subject report and the opinions of Dr C have not been tested in cross-examination and the Court has not made any findings with respect to the contents of the subject report or the matters recorded therein or the opinions expressed therein.
(16)The subject report has no probative value at this time.
It should be noted that Section 121(9) of the Act states, as follows:
(9) The preceding provisions of this section do not apply to or in relation to:
(a)the communication, to persons concerned in proceedings in any court, of any pleading, transcript of evidence or other document for use in connection with those proceedings; or
(aa)the communication of any pleading, transcript of evidence or other document to authorities of States and Territories that have responsibilities relating to the welfare of children and are prescribed by the regulations for the purposes of this paragraph; or
(b) the communication of any pleading, transcript of evidence or other document to:
(i) a body that is responsible for disciplining members of the legal profession in a State or Territory; or
(ii) persons concerned in disciplinary proceedings against a member of the legal profession of a State or Territory, being proceedings before a body that is responsible for disciplining members of the legal profession in that State or Territory; or
(c)the communication, to a body that grants assistance by way of legal aid, of any pleading, transcript of evidence or other document for the purpose of facilitating the making of a decision as to whether assistance by way of legal aid should be granted, continued or provided in a particular case; or
(d)the publishing of a notice or report in pursuance of the direction of a court; or
(da) the publication by the court of lists of proceedings under this Act, identified by reference to the names of the parties, that are to be dealt with by the court; or
(e)the publishing of any publication bona fide intended primarily for use by the members of any profession, being:
(i) a separate volume or part of a series of law reports; or
(ii) any other publication of a technical character; or
(f)the publication or other dissemination of an account of proceedings or of any part of proceedings:
(i) to a person who is a member of a profession, in connection with the practice by that person of that profession or in the course of any form of professional training in which that person is involved; or
(ia) to an individual who is a party to any proceedings under this Act, in connection with the conduct of those proceedings; or
(ii) to a person who is a student, in connection with the studies of that person; or
(g)publication of accounts of proceedings, where those accounts have been approved by the court.
On 3 February 2016, the mother forwarded her written submissions, prepared by Mr Dura of Counsel and they were as follows:
(1)Pursuant to Rule 15.10 of the FCC Rules, the subject report is to be treated as confidential and should not be disclosed to persons other than the parties and their legal representatives unless the Court otherwise directs (Paragraph 1 of the Notice to Persons Receiving Copies of the subject report ). No application has been made by any person for the release of the subject report and no directions have been made or foreshadowed as to the intended use of the subject report (Rule 15.10(3)(c) of the FCC Rules ).
(2)Pursuant to Section 121 of the Act, persons are prohibited from publishing any or all account of proceedings conducted pursuant to the Act, to the public or to a section of the public without committing an offence. The release of the subject report to the persons involved in the criminal [proceedings] must constitute “a section of the public” and absent an application for permission to release the subject report being made under Section 121 of the Act the subject report should not be released. To date no such application has been filed by any person nor any evidence filed to support the lifting of the restriction created by Section 121 of the Act.
(3)The release of the subject report to the persons requesting must also be viewed on public policy grounds. As the provisions of Section 128 of the Evidence Act 1995 (Cth) cannot apply to parties being interviewed as part of the Family Report process, the Court must consider carefully the impact on litigants in circumstances where they have been ordered to participate in a process on a confidential basis, save for the parenting proceedings for which the subject report was commissioned, and are subsequently served with notice that such a subject report is no longer confidential and may be disseminated to sections of the public and/or prosecuting authorities.
(4)The subject report not only identifies the mother and the father, the parties to the parenting proceedings, but also discloses the identification and personal details of the child the subject of the proceedings and the identity and personal details of a third party, namely, Ms G (“Ms G”). The mother raises and expresses serious and genuine concern for the safety and welfare of the child in the event that the subject report is released to the persons identified as being the intended recipients of the subject report.
(5)For the reasons set out above, and adopting the submissions filed on behalf of the father dated 29 January 2016 (as set out in paragraph 8 above), the current request for the release of the subject report should be rejected.
(6)Should the NSW Police seek to persist with their request for the release of the subject report, it is respectfully submitted that an application in the proper form together with evidence supporting the basis of the application should be filed and served on the mother and the father and they each be afforded an opportunity to adduce any evidence in reply. The matter should then be listed before the Court for hearing and determination of the evidence and detailed submissions.
On 4 February 2016, the parties written submissions were forwarded to the NSW Police. In the email forwarding these, the parties were requested to consider whether the matter could be dealt with on the papers in chambers or heard orally. The father’s legal representatives requested a period of 7 days after receiving the NSW Police submissions to take instructions and consider that matter. On 5 February 2016, the mother’s legal representatives made an identical request.
On 18 February 2016, the NSW Crown solicitor forwarded written submissions to the Court by way of email (copying the parties) and those submissions were to the following effect:
(1)The request of the NSW Police was for permission to use the subject report in the investigation and prosecution and provision to the DPP for its use in the prosecution of a number of persons, including the father and the mother, charged with or in connection with the murder of Mr G (“Mr G”) in proceedings currently in the Supreme Court of New South Wales (“the Supreme Court proceedings”).
(2)That permission was sought pursuant to Rule 2.08 of the FCC Rules.
(3)Rule 2.08(3) of the FCC Rules provides that in considering whether to give permission under this rule, the Court must consider the following matters
(a)the purpose for which access is sought;
(b)whether the access sought is reasonable for that purpose;
(c)the need for security of court personnel, parties, children and witnesses;
(d)any limits or conditions that should be imposed on access to, or use of, the court record.
(4)The subject report contains information probative to the prosecution of the father and the mother in connection with the murder of Mr G.
(5)The father is charged with the murder of Mr G pursuant to Section 18 of the Crimes Act (NSW) 1900. A copy of the NSW Police Facts Sheet for the father is included at Tab 1 of the submissions, which sets out the general background to the charges.
(6)The mother is charged with being an accessory before the fact to the murder of Mr G pursuant to Sections 346 and 18 of the Crimes Act (NSW) 1900. A copy of the NSW Police Facts Sheet for the mother is included at Tab 2 of the submissions, which sets out the general background to the charges.
(7)The subject report records information given from the father and the mother to Dr C about their relationship, the mother’s fear of the father, their connection with other co-accused (Mr A), various activities, and their knowledge and involvement in criminal activities that the NSW Police consider highly probative to the investigation and prosecution for the murder of Mr G.
(8)The NSW Police consider the subject report (and the information contained therein) necessary for a proper law enforcement purpose, namely the prosecution of the accused charged in connection with a serious crime being the murder of Mr G, a Crown witness as referred to below.
(9)The criminal prosecution is listed for trial in the Supreme Court of NSW commencing 4 April 2016.
(10)Mr G was executed outside his home at (omitted) on 6 April 2011. He was shot 5 times to the head and upper body and died at the scene.
(11)At the time of his execution, Mr G was a Crown witness in the prosecution of the father and the mother and a number of co-accused in relation to charges of importation of large commercial quantities of cocaine and the laundering of millions of dollars' worth of cash and assets.
(12)On 22 June 2010, Mr G gave evidence as a Crown witness at the committal proceedings in the Local Court of New South Wales. At committal, Mr G gave evidence that he had been present during discussions involving the father and other co-accused about importing large quantities of cocaine into Australia, and about the father being involved in the possession and supply of firearms.
(13)Concurrently with the charges against the father and the co-accused on importation and money laundering, the NSW Crime Commission obtained confiscation orders for more than $20,000,000.00 in cash and assets linked to the father and others.
(14)Both prior to and after giving evidence, Mr G reported to the NSW Police that he had been receiving threatening calls.
(15)As a result of a NSW Police led investigation into the execution of Mr G, NSW Police charged the father, the mother, Mr A, Mr M, Mr W and Mr J in connection with the murder. They each stand charged in connection with the murder.
(16)During the investigation, a search warrant was executed on a cell occupied by the father and a number of documents were located relating to a custody dispute between the father and the mother.
(17)Investigators were granted permission by Judge Brewster of this Court on 14 September 2015 to view the Court file and obtain copies if necessary. Investigators identified in the Court file the subject report, which contained evidence that the NSW Police consider relevant and highly probative of issues likely to arise in the criminal proceedings.
(18)Police allege that the father conspired with a number of persons to execute Mr G and that the mother was aware of the murder plan.
(19)The other co-accused are connected with the father and the mother as follows:
(a)Mr A: brother of the mother and the brother-in-law of the father;
(b)Mr W: a former remand inmate at the (omitted) Remand Centre (“(omitted)”) and housed in the same section of the correctional centre as the father. Evidence points to ongoing contact between the two after the release of Mr W from the (omitted);
(c)Mr M: an inmate at the (omitted) Correctional Centre for a 6 month period and housed in '(omitted) wing' with the father for a 6 month period before his release and alleged participation in the murder; and
(d)Mr J: an inmate at the (omitted) Correctional Centre and housed in '(omitted) wing' with the father and Mr M for a period of 3 months before his contact with Mr A, and his alleged participation in the murder.
(20)The NSW Police sought the authority of the Court for the subject report to be made available and served on the DPP and for it to be provided to all accused in relation to the murder and their legal representatives.
(21)The application of the NSW Police is made pursuant to Rule 2.08(1)(c) of the FCC Rules for express authority to use the subject report in the investigation and prosecution of the criminal conduct alleged and to provide the subject report to the DPP and the other persons previously identified, for that purpose.
(22)The father and the mother have both filed objections to the application.
(23)The submissions on behalf of the father are referred to above being based on confidentiality and a lack of legitimate forensic purpose.
(24)The submissions on behalf of the mother are referred to above and note a concern for the welfare of their child if the child's identity was to be released in the service of the subject report on the proposed parties.
(25)Central to the application is whether the subject report is subject to an implied undertaking restricting its use by the NSW Police and whether or not the Court should approve the request for release from, or the modification of, the implied undertaking to allow the NSW Police to use the subject report for the stated intended purpose.
(26)The NSW Police acknowledge that the granting of permission to inspect and copy the subject report is subject to an implied undertaking or obligation that the document not be used for any purpose alien to the proceedings before this Court: see Thornton & Workcover Corporation of South Australia (2009) FamCA 449 (“Thornton”).
(27)However, the NSW Police submit that:
(a)Consistent with the reasoning in Thornton, the implied undertaking or obligation does not apply where the intended purpose is the use of documents for criminal investigations and proceedings, (included at Tab 4 of the submissions);
(b)In the alternative, the Court has the power to release or modify the implied undertaking or obligation on the NSW Police: Thornton; Tudway & Tudway & Anor [2015] FamCA 933 (“Tudway”) (included at Tab 5 of the submissions); Commissioner of Taxation & Darling [2014] FamCAFC 59(“Darling”) (included at Tab 6 of the submissions).
(28)The restriction in Section 121 of the Act does not apply, in terms of Section 121(9)(a) of the Act, for the reasons set out below.
(29)The subject report is the subject of a notice signed by Judge Kemp of this Court that states at point 1 that the report should be treated as confidential and should not be disclosed to persons other than the legal representatives of the parties and the parties the subject of these proceedings, unless the Court otherwise directs. The note is made in accordance with the provisions of Section 121 of the Act.
(30)The restriction in Section 121 does not apply to these circumstances.
(31)Section 121(9)(a of the Act) is as set out in paragraph 9 above.
(32)Section 121(9)(a) of the Act applies in that the communication of a document (being the subject report), to the NSW Police (or in turn, the communication of the subject report to the DPP) who are both “concerned in proceedings” (the criminal prosecution of the accused) in any Court (the Supreme Court of NSW), exclude the provisions of s.121 of the Act.
(33)This interpretation of Section 121(9) of the Act is consistent with the approach taken by Justice Stevenson, in Tudway (at Tab 5).
(34)The Court has the power to modify any implied obligation: the public interest in the ensuring that justice is done, and the investigation and prosecution of serious criminal activity would move the Court to modify or release any implied obligation. The NSW Police seek the subject report for the purpose of the investigation and prosecution of serious criminal offences; namely, murder and the charge of accessory before the fact to the murder of a Crown witness. The thorough investigation of criminal offences and their prosecution, serve to maintain the public's interest in justice, and to discourage crime and other activities. This is a proper purpose for the use of the subject report and a legitimate forensic purpose for the request.
(35)Pursuant to Section 15A of the Director of Public Prosecutions Act (NSW) 1986 (“the DPP Act”), the NSW Police have a continuing duty to disclose to the DPP all relevant information, documents or other things obtained during the investigation that might reasonably be expected to assist the case for the prosecution or the case for the accused person [Tab 8]. The NSW Police consider the subject report is a document that might reasonably be expected to assist the prosecution and if the subject report was not subject to any restriction on use, would be a document covered by the obligation under Section 15A and would be provided by the NSW Police to the DPP.
(36)The NSW Police submit that:
(a)The Court has the power to release or modify any implied obligation or restriction on the use of the subject report;
(b)The public's interest in the administration of justice and the investigation and prosecution of criminal activity outweigh the privacy interests of the father and the mother or any confidentiality attached to the subject report or the participants' participation in the process of its preparation;
(c)The release is not detrimental to the interests of the child and there are no identified factors that directly impact the welfare of the child by the release.
(37)In Thornton, the Family Court of Australia (Justice Dawe) determined an application by a father to restrain the Workcover Corporation of South Australia from using documents from Family Court proceedings to investigate and litigate an action against him for suspected criminal activity, namely, making a false workers' compensation claim. In Thornton, Justice Dawe said:
82.The Family Court is obliged to apply the principle that there is an implied undertaking or obligation on a person who receives documents knowing that the documents have been obtained because of Family Court proceedings. This undertaking prevents the improper use of those documents.
83.I am satisfied on consideration of all of the authorities that the implied undertaking does not apply, is modified or can be the subject of release by the Court, if the circumstances in which the documents are to be used are such that the public interest is in favour of disclosure rather than in the preservation of secrecy or confidentiality in the information or documents.
84.The Family Court of Australia should exercise its discretion to prevent improper use in appropriate matters. The implied undertaking or obligation may not relate to, or may be the subject of an exception, if the use to which the documents are to be put by that person is one where the public interest in favour of disclosure outweighs the general obligation.
85.I am satisfied that the respondents seek to use the material they have obtained for the purposes of investigating and prosecution of a criminal offence and to recover funds allegedly obtained due to improper behaviour. Such use is one which clearly falls in the category of maintaining the interest of justice and discouraging crime and other improper activities.
86.The obligation may not exist in this case because the implied undertaking does not apply (or the obligation is not created) if the use to which the documents are to be put is one which falls within the exceptions discussed.
87.If however the obligation or implied undertaking does exist then the Court has the discretion to release a person from the undertaking or obligation if the necessary exception is made out.
88.The obligation or undertaking is one given to the Court. It is for the Family Court to decide whether the party, if bound by the obligation or undertaking, should be released.
89.It is clear from the circumstances of this case that the respondents seek to be released from any undertaking in order to permit proper investigation and prosecution for alleged criminal activity and for civil proceedings to be conducted for the return of monies allegedly wrongfully received.
90.When considering the release of the respondents from the obligation or undertaking it is necessary to weigh up the competing factors of any disadvantage to be suffered by the other party, in this case the father.
And at [92]- [93]
92.The Family Court of Australia should be seen to maintain the principles of justice. The Family Court of Australia should be seen to support the application of the laws of Australia.
93.The best interests of the child of the parties are not the paramount consideration in this exercise of discretion. However, it is appropriate when exercising the discretion to consider whether any order made by this Court would be detrimental to the interests of the child. In this case there are no significant factors which relate directly to the welfare of the child which would influence the Court's discretion. The interests of the child however do not outweigh the public interests of ensuring that justice is done.
(38)Whilst Thornton concerned the Court's interpretation of Rule 24.13 Family Law Rules 2004, Rule 2.08 FCC Rules is, relevantly, in near identical terms. The Court accepts that position here and further accepts the exposition of the law and the relevant principles by Justice Dawe as set out above.
(39)The NSW Police submit that the public interest in the investigation and prosecution of serious criminal charges outweighs any right to privacy of the father and the mother or their confidentiality in the process. The Court has an interest in seeking to preserve the right to privacy and confidentiality in appropriate circumstances, but as is clear from Thornton and other decisions, the interests are all times subject to the Court's power to make orders in relation to the use of the subject report or other documents provided or obtained in these proceedings. The interests are not absolute. The Court accepts that position.
(40)The suspected criminal activity is grave and one of the most serious crimes of personal violence; the murder of a Crown witness after giving evidence in a criminal prosecution.
(41)There is a very strong public interest in ensuring that those involved in the commission of such a serious crime are brought to justice. Central to that interest, is the strong public interest in ensuring that all evidence available that is prima facie relevant and probative to a prosecution be available to the DPP and to the Supreme Court of NSW for the proper determination of charges. The Supreme Court of NSW has a robust system for challenge to evidence and the lack of testing of the contents of the subject report does not and could not inhibit its release. The Court accepts that position.
(42)The public interest in the investigation and prosecution of this serious crime outweighs the right or interest in privacy or confidentiality and that the Court should grant the application: Tudway.
(43)Whilst the charges are serious, it has been raised that the release of the subject report would directly affect the welfare of the child. The mother raises a general concern for the safety and welfare of the child in the event of the release of the subject report without specifying any precise concerns.
(44)The existence of the child would already be known to at least three of the accused (the mother, the father and Mr A).
(45)As set out in the NSW Police Facts included at Tabs 1 and 2 of the submissions, the NSW Police allege that the father arranged the murder with the mother’s knowledge and that the father and others conspired to effect the killing. In those circumstances, any danger or impact on the welfare of the child has already arisen.
(46)In line with the reasoning in Thornton:
(a)The best interests of the child are not the paramount consideration in the exercise of the discretion;
(b)It is appropriate the Court consider whether any order made by the Court would be detrimental to the interests of the child; and
(c)If there are no significant factors that relate directly to the welfare of the child, the interests of the child do not outweigh the public's interest in the proper investigation and prosecution of these offences.
(47)Arguably, the release of the subject report is in the best interests of the child, as it is in the public's interest, that the investigation and prosecution of serious criminal activity be assisted by the availability to the DPP of all prima facie relevant and probative evidence.
(48)Finally, the NSW Police do not seek to identify the child by name. If the Court has any concern for the interests of the child, the NSW Police submit that the Court could accede to the request subject to a restriction that the child's name be redacted from the subject report. The Court accepts such a restriction.
(49)The submissions filed by the mother raise, by way of objection, that the subject report identifies and sets out the personal details of Ms G.
(50)That:
(a)The release of the subject report does not directly affect Ms G;
(b)The NSW Police do not intend to use the identity or details of Ms G in the criminal proceedings;
(c)Should the Court have any concern about the inclusion of the identify and or details of Ms G, the Court could accede to the request subject to a restriction, being that Ms G’s identity, or that of her family, and any identifying details be redacted from the subject report. The Court accepts such a restriction.
(51)The matters raised strongly support the Court's approval of the request for release of the subject report for the intended purpose.
(52)The Court has the power to determine the application in chambers on the papers and the urgent and compelling nature of the request supports this process. The NSW Police note that the mother has specifically requested the Court require NSW Police to file a formal application and evidence in support and that the matter be determined in Court.
(53)The Court's Rules allow the Court considerable flexibility to decide the procedure for determining any issue that arises or to prescribe a procedure where the FCC Rules do not stipulate the procedure to be followed: Rules. 1.05-1.07 of the FCC Rules, Rules 1.09-1.12 of the Family Law Rules2004. That flexibility includes dispensing with any procedure including the requirement for a formal application. The NSW Police submit that there is no need for any formal application. The initial request and the submissions set out the application made and the basis for the application. The NSW Police will, however, accede to the Court's consideration of the appropriate procedure in determining this application.
(54)Given the gravity of the impending criminal prosecutions, if the Court has any remaining concerns about granting the release of the subject report for the intended purpose or considers that the objections raised or the mother’s request for formal application require a formal hearing, the NSW Police request that this matter be listed for hearing and that the Court permit the NSW Police to be joined as an intervenor or otherwise file an application for the release of the subject report and to serve further evidence in support.
(55)The NSW Police ask that orders be made for the expedited service of any evidence in reply and the matter be listed urgently, at the Court's first available date, so that the application can be heard and determined before the trial date for the criminal proceedings of 4 April 2016. The NSW Police note that in the event the use of the subject report is authorised by this Court, the DPP will need to serve the Report on the accused in advance of the commencement of the trial date.
On 24 February 2016, my associate emailed the legal representatives for the mother and the father noting the expiry of 7 days was the following day and requested the parties advise whether the matter could be dealt with on the papers or to be dealt with in terms of oral submissions.
The father’s legal representatives responded on 24 February 2016 indicating that he required a further 7 days to obtain his client’s instructions and that this was consented to by the mother’s legal representative.
On 25 February 2016, the Court extended the time for the father and the mother to advise their positions to 3 March 2016.
On 3 March 2016, the father’s legal representative confirmed to the Court that the matter could be dealt with in Chambers on the papers and requested 7 days to provide written submissions in reply to the submissions of the NSW Crown Solicitor. The Court gave the legal representatives for both the father and the mother until 10 March 2016 to provide their written submissions. Following this email, the mother’s legal representative by email of the same date indicated she would like the matter to be heard orally and also sought an extension to file her written submissions to 10 March 2016.
On 4 March 2016, the Court listed the matter for hearing on 10 March 2016 and given that that was the only available date, then directed that the father and the mother provide their further written submissions in reply by 9 March 2016. The hearing on 10 March 2016 being limited to 15 minutes per party wishing to make oral submissions, given the lengthy written submissions already received.
The Court in its directions confirmed that it was hearing the matter without formal application or affidavit evidence. The Court does so in terms of its own timing in this Court and given the date of trial in the Supreme Court proceedings. The Court is of the view that the written submissions filed set out the relevant evidentiary background. The father and the mother would both be entitled to seek Evidence Act Certificates in respect of any affidavits filed and, indeed, if an order was made for the filing of such affidavits, each of the father and the mother would be entitled to seek to claim the privileges against self-incrimination.
On 8 March 2016, the father provided his further written submissions in reply which were to the following effect:
(1)Rule 2.08(1) of the FCC Rules identifies the persons who may be permitted to search the Court record and the said rules limit the persons entitled to search a Court record to those who seek the information for the purposes of the case, namely the parenting proceedings between the father and the mother and not otherwise.
(2)The expanded category of persons in Rule 2.08(1)(c)(ii) who may access the record includes a Chapter 15 Expert or a Family Consultant, but no one else.
(3)If the Court finds that the NSW Police fall within Rule 2.08(1)(c)(ii) of the FCC Rules, then it is conceded that the Court must consider the matters contained in Rule 2.08(3) of the FCC Rules.
(4)That unless and until the NSW Police identify with specificity the material in the report in which it claims to have a “proper interest”, the Court cannot properly exercise its function in determining whether or not to give permission in accordance with Rule 2.08 of the FCC Rules.
(5)The general assertions contained in paragraphs 4, 7, 8 and 17 of the submissions of the NSW Police dated 18 February 2016 (as set out at paragraph 12 above) do not identify the material that is sought with sufficient or indeed any particularity.
(6)If the subject report is released it should not be released as a whole. It is a 61 page report with 203 paragraphs. It is inconceivable that the whole of the subject report could be of probative value in the criminal proceedings.
(7)Its release, if at all, should be specifically limited by the Court to those parts of the report that would need to be specifically identified by the NSW Police beforehand as being of probative value in the prosecution of the father and the mother.
(8)The co-accused in the criminal proceedings have no proper interest in the subject report that was prepared for the express purpose of the parenting proceedings and should not be released to them or their legal representatives.
(9)The documents the subject of the decision in Thornton appear to have been the father’s itinerary provided to the mother in accordance with the order of Registrar Radzevicius made on 8 April 2002 (paragraphs 13 and 16).
(10)The documents the subject of the proceedings in Tudway were consent orders, transcript of proceedings and the husband’s affidavit (see order 3).
(11)The documents the subject of the proceedings in Darling were documents identified in an affidavit and parts of affidavits filed in the proceedings (see orders 1 and 2).
(12)They can be categorised as documents put into evidence by the parties that had been the subject of scrutiny and presumably findings by the Court, orders of the Court and a transcript of proceedings.
(13)The exception in Section 121(9) of the Act does not apply to the subject report because it’s not a document that is in evidence in the parenting proceedings.
(14)The subject report is a document in respect of which the Court’s permission to release it other than to the parties and their legal representatives cannot yet be given because it is not in evidence, it has not been tested and its author has not yet been the subject of cross-examination, unlike the documents that were considered by the Court in the cases relied upon by the NSW Police.
The mother did not provide any further written submissions in reply, but relied on Mr Dura’s oral submissions at hearing.
On 10 March 2016, Ms Gerace appeared for the NSW Police. Mr Dura appeared for the mother and Mr Massey appeared for the father.
The Court granted leave for the NSW Police to file in Court and rely on the affidavit of Detective Sergeant Mr R (“DS Mr R”) of the NSW Police sworn 10 March 2016. DS Mr R was available but not required for cross-examination by the father or the mother. That, to an extent, dealt with the mother’s submissions at points 2 & 6 in paragraph 10 above.
DS Mr R’s affidavit, relevantly, deposes to the view of the NSW Police that the subject report contains information that is highly relevant to the investigation and prosecution of the father, the mother and the other persons identified by the NSW Police. The NSW Police assert in general terms that the subject report is relevant because it contains statements by each of the accused and opinions by Dr C about the nature of the accused’s relationship, each accused’s personality and character including their involvement in criminal activity, each accused’s credibility, fears held by the mother for her personal safety in respect of the father, the father’s access to firearms and the nature of the relationship between the father and the mother’s brother (Mr A), including threats made by the father to him. Some of these matters being relevant to the murder charge, the accessory before the fact murder charge and the conspiracy charges in relation to the murder.
Following oral submissions, the Court raised with Ms Gerace a concern as to how to limit any further disposition of the subject report by persons not the subject of the proceedings before it or not the subject of statutory obligations being, Mr A, Mr M, Mr W and Mr J. The Court sought from Ms Gerace the form of an undertaking that she proffered in oral submissions to deal with that aspect of the Court’s concern. The Court requested such an undertaking be provided to the Court and the legal representatives by 12 noon, on 11 March 2016 and then provided to both Mr Dura and Mr Massey an opportunity to respond by 4.00pm, 11 March 2016, noting that Ms Gerace had informed the Court the trial in the Supreme Court proceedings was still then proceeding on 4 April 2016.
On 11 March 2016, at 12.23 the Crown solicitor forwarded an email to the following effect:
I respectfully advise the Court that the Commissioner, the NSW Police, proposes to make the following undertaking to the Court, in relation to the service of the subject report on the co-accused at trial:
“In relation to the subject report, the Commissioner, the NSW Police, undertakes that it will apply to the Supreme Court of NSW for an order under the Court’s inherent jurisdiction or pursuant to the Court Suppression and Non-Publication Act 2010 (NSW) that Mr A, Mr M, Mr W and Mr J not publish the subject report (as defined by Court Suppression and Non-Publication Act 2010 (NSW) (“the Suppression Act”).”.
At 1.48pm on 11 March 2016, the solicitor for the father forwarded his written submissions as follows:
(1)The undertaking is that an application will be made to the Supreme Court of NSW.
(2)A suppression order will only supress the subject report to the extent that it is admitted into evidence or information about the evidence. (Section 7(13) of the Suppression Act).
(3)A suppression order is a discretionary order that may only be made if the Court is satisfied that one or more of the grounds set out in Section 8 of the Suppression Act are made out in the evidence before the Court.
(4)This Court does not know whether the application will be granted.
(5)In Tudway the Court was informed and accepted that the District Court of NSW had already made suppression and non-publication orders.
(6)A suppression order would only operate for whatever period of time was specified by the Court. (Section 12 of the Suppression Act).
(7)The definition of “publish” in Section 3 of the Act is not an exclusive definition but would not prevent the persons, the co-accused, from otherwise using the information contained in the subject report in other ways. They do not have to publish as defined in the Suppression Act to use the information.
(8)Until the application is granted the subject report, if released, is at large and accessible to the father’s co-accused.
(9)For these reasons the undertaking is insufficient and for that reason alone the subject report should not be released.
(10)The evidence of DS Mr R in his affidavit sworn 10 March 2016 at paragraph 11 is that “... NSW Police seek orders authorizing use of certain parts of the subject report ...”.
(11)Those “certain parts” have not been identified anywhere in the evidence or submissions on behalf of NSW Police.
(12)The subject report should not be released, if at all, until those parts of the report asserted to be probative to the prosecution of the parties to these proceedings have been identified and the release must be confined to those “certain parts” so identified that are germane to the Police investigation and prosecution.
The solicitor for the mother did not forward any further written submissions.
On 15 March 2016, the Crown solicitor emailed a request for the opportunity to provide a written submission in reply to that of the father’s solicitor. The Court granted this request but provided that any such short written submission be made by 12 noon on 16 March 2016.
On 16 March 2016, the following further submission was received from Counsel for the NSW Police:
(1)By way of clarification, the undertaking by the Commissioner, the NSW Police is to make application pursuant to the inherent jurisdiction and or the Suppression Act. The undertaking is that an application will be made on both bases.
(2)The Supreme Court has an inherent jurisdiction to make such orders, arising from its general responsibility as a superior court of unlimited jurisdiction for the administration of justice. As to the supervisory role of the Supreme Court, see generally Kirk v Industrial Relations Commission of NSW (2010) 239 CLR 531 at [91]-[100]
(3)The Supreme Court has power to make such orders as are reasonably necessary to secure the proper administration of justice in the proceedings before it and the orders can be made at any stage of the proceedings: John Fairfax & Sons Pty Ltd v Police Tribunal of NSW (1986) 5 NSWLR 465 per McHugh JA at 477; Attorney-General (NSW) v Mayas Pty Ltd (1980 14 NSWLR per Mahoney AJ at 345.
(4)The circumstances in which an order preventing publication or suppression is not closed and a protective order can be made where it is necessary to secure the proper administration of justice: Commissioner of Police New South Wales v Nationwide News Pty Ltd (2008) 70 NSWLR 643 per Mason P at [37]. The provisions of the Family Law Act, the nature of the material and the background facts would be considered in any application.
(5)The mother and the father are entitled to make similar application to the Supreme Court or to support the application.
(6)The service of the subject report on the co-accused carries with it the implied obligation on the co-accused to use it for the purpose of the proceedings alone.
(7)The Court has the power to vary the implied obligation and to allow the NSW Police to use the subject report without any undertaking or application. The decision in Tudway is not authority for the proposition that an undertaking is required or that an applicant must have already obtained a non-publication order from the Court where the relevant material is to be used. The facts in Tudway were unique: there had already been an earlier application and proceedings in the other Court involving material from the Family Court. The facts do not disclose the basis upon which the applicant had already been able to secure a non-publication order. This may have been because of the nature of the dispute itself (a claim for damages for sexual abuse) or otherwise as a result of the earlier applications. The matters to which the Court had to have regard in Tudway differ: the documents in Tudway were to be used in civil proceedings rather than the investigation and prosecution of criminal charges: Thornton and Darling.
(8)The provisions of Section l5A(c) of the Children (Criminal Proceedings) Act 1987 (NSW), operate to prohibit the publication or broadcast of the name of the child in relation to the criminal proceedings.
Consideration
On the request of the NSW Police, not opposed, The Commissioner NSW Police will be joined as an intervenor in terms of the application before the Court for the release of the subject report.
Under Rule 23.01A of the FCC Rules:
If a family report is prepared in accordance with an order made, the Court may: (a) give copies of the report to each party or the party’s lawyer and to any independent children’s lawyer; and (b) receive the report in evidence; and (c) permit oral examination of the person making the report; and (d) order that the report not be released to a person or that access to that report be restricted.
Rule 2.08 of the FCC Rules states:
(1)The following persons may search the court record relating to a family law or child support case, and inspect and copy a document forming part of the court record:
(a)the Attorney-General;
(b)a party, a lawyer for a party, or an independent children's lawyer, in the case;
(c)with the permission of the Court, a person with a proper interest:
(i)in the case; or
(ii)in information obtainable from the court record in the case;
(d)with the permission of the Court, a person researching the court record relating to the case.
(2)For subrule (1), the parts of the court record that may be searched, inspected and copied are:
(a)court documents; and
(b)with the permission of the Court, any other part of the court record.
(2A) A permission:
(a)for paragraphs (1)(c) and (d) and (2)(b)--may include conditions, including a requirement for consent from a person, or a person in a class of persons, mentioned in the court record; and
(b)for paragraph (1)(d)--must specify the research to which it applies.
(3)In considering whether to give permission under this rule, the Court must consider the following matters:
(a)the purpose for which access is sought;
(b)whether the access sought is reasonable for that purpose;
(c)the need for security of court personnel, parties, children and witnesses;
(d)any limits or conditions that should be imposed on access to, or use of, the court record.
(4)Rule 2.32 of the Federal Court Rules applies to the searching of records in a proceeding that is not a family law or child support proceeding.
(5)In this rule:
court document includes a document filed in a case, but does not include correspondence or a transcript forming part of the court record.
Note 1: Section 121 of the Family Law Act restricts the publication of court proceedings.
Note 2: Access to court records may be affected by the National Security Information (Criminal and Civil Proceedings) Act 2004 .
The Court accepts that the relevant FCC Rule set out above is relevantly in identical terms to that of the relevant Family Law Rule commented on in Thornton.
The Court is of the view that the application of the NSW Police falls with the exemption identified in Section 121(9)(a) of the Act, given the existence and purpose of disclosure in relation to existing criminal proceedings in the Supreme Court of New South Wales.
The Court is of the view further that express authority may be granted to the NSW Police to use the subject report in its investigation and prosecution of the criminal conduct alleged and for its use in the criminal proceedings in the Supreme Court of New South Wales, given that the Court accepts that those matters involved serious criminal offences being murder and the charge of accessory before the fact to the murder of a Crown witness.
The Court accepts that the investigation of criminal offences and their prosecution serve to maintain the public’s interest in justice and that this is a proper purpose for the use and release of the subject report and, as such, the Court accepts that there is a legitimate forensic purpose for the request made by the NSW Police and further, given its specific terms, such a request would not amount to a “fishing expedition”.
The application of Section 15A of the DPP Act would necessarily require the subject report’s release to the DPP and the Court accepts that position.
The Court is satisfied that the subject report does not need to be admitted into evidence into these proceedings or the subject of testing by cross-examination, prior to any release being considered.
The privacy interests of the father and the mother and any confidentiality attached to the subject report or the participation in the process of its preparation can be protected by both the restraints against further use outside the criminal proceedings in the Supreme Court of New South Wales, by restraints imposed in terms of the process of the Supreme Court itself and by the redaction of information identifying the child and Ms G. The Court accepts that the Supreme Court has a robust system for the challenge to any evidence and the lack of testing of the contents of the subject report in this Court, would not inhibit its release and use in proceedings in the Supreme Court, subject to that Court’s rulings as to admissibility and the like. Similarly, the Court is satisfied that the Supreme Court would provide appropriate security for Dr C in terms of Rule 2.08(3)(c).
The Court does not accept that each and every paragraph of the subject report has to be shown to have probative value in the Supreme Court proceedings before its release could be authorised. Further, the Court accepts that it would not be appropriate to seek to excise from the subject report paragraphs (without some specific reason to do so), as the subject report should be read in its entirety and, ultimately, its reception would be the subject of any rulings as to admissibility in the Supreme Court, in any event. The Supreme Court at the relevant point in time could consider the issue of the provision of any Certificates under s.128 of the Evidence Act. Neither Mr Dura nor Mr Massey sought to identify any particular paragraph in the subject report which could be so redacted, in any event.
Within the robust system the subject of any criminal trial, the Court accepts that there is a presumption of innocence.
The Court accepts the submissions of the NSW Police that information relating to the identity and details of the family of Ms G should be redacted given that the NSW Police do not intend to use such information in the criminal proceedings before the Supreme Court.
The Court accepts that the best interests of the child are not the paramount consideration in the exercise of its discretion on this application.
The Court accepts that the release of the subject report is not detrimental to the interests of the child as there are no significant factors which relate directly to the welfare of the child. The mother has not given any particulars to evidence her asserted “serious and genuine” concerns for the child’s safety and welfare. The Court is of the view that the child’s name and birthdate should be redacted prior to any release. The Court notes in that regard, submission 8 in paragraph 29 above so far as the prohibition concerning the child in relation to the criminal proceedings.
The Court, further, accepts that the interests of the child in these proceedings, however, do not outweigh the public interest of ensuring that justice is done in the criminal proceedings in the Supreme Court of New South Wales.
The Court has had specific regard to the decision of the Full Court of the Family Court of Australia in Darling. In that decision the Full Court referred to the “open” justice principles considered in the High Court of Australia’s decision in Hogan v Hinch (2011) 243 CLR 506. The Court is of the view that a relevant protection for the subject report in this matter is provided by the implied protections in the use of that document in the proceedings before the Supreme Court and that, ultimately, the issue of its tender will be a matter for the presiding Justice there. Any availability to the DPP would be, therefore, limited for the purposes of those proceedings and subject to that protection.
The Court accepts Mr Dura and Mr Massey’s submission that the access to the Court file and the subject report by the NSW Police in terms of the authority of Judge Brewster recorded at paragraph 3 above did not amount to a waiver of any implied obligation, noting the comments by way of obiter of the Full Court in Darling at paragraph 112 in that case. In that case, permission to inspect and copy the Court file had not been granted by a Judge which may have carried with it a release from any implied obligation, but by a Registrar.
The Court further accepts the submissions of Ms Gerace that this Court need only be satisfied that:
a)There is a genuinely held belief by the NSW Police that matters referred to in the subject report may be relevant to the criminal prosecution in the Supreme Court proceedings. The Court accepts that the NSW Police have such a genuine belief as to the matters DS Mr R deposes to in terms of his affidavit sworn 10 March 2016, which was not the subject of cross-examination.
b)The genuinely held belief referred to in (a) above is, nevertheless, supported by evidence in “brief and general” terms which provides an explanation as to why the subject report is relevant to the criminal prosecution in the Supreme Court proceedings. The Court adopts the Full Court’s decision in Darling in relation to the adequacy of the material necessary to provide an adequate explanation for the relevance of the subject report in the Supreme Court proceedings. The Court accepts that the NSW Police have established such a proper purpose.
and that:
c)It is not necessary for the Court to have explained to it in a detailed and particularised way the linking of any parts of the subject report to matters the subject of the charges the subject of the Supreme Court proceedings. The Court accepts that no more is required from the NSW Police in evidentiary terms to establish its application than that as set out in paragraph 23 above.
d)Given that the current application was made by the NSW Police, significant weight should be given to its position as the relevant authority for the investigation and prosecution of criminal matters when assessing public interest considerations to the effect that there is a somewhat lower threshold for the Court’s assessment of a proper interest under Rule 2.08(1)(c). The Court accepts that position, but is satisfied, in any event, that the relevant proper interest has been established.
Finally, the Court raised with Ms Gerace the issue of the use by Mr A, Mr M, Mr W and Mr J of the subject report if released to them. Notwithstanding any implied obligation which may attach to those co-accused in terms of the release of the subject report to them as set out in paragraph 29(6) above, the Court accepts the undertaking proferred by the NSW Police as a mechanism to ensure that the release of the subject report to those persons has the supervision of the Supreme Court of NSW as a limitation on it. The Court is of the view that, initially, those persons should be requested to provide a written undertaking to this Court prior to the release to them of the subject report. If that written undertaking is not forthcoming, then the Court accepts the undertaking of the Commissioner NSW Police to make the appropriate application to the Supreme Court of NSW (either under its inherent jurisdiction or the Suppression Act) to ensure that those persons do not publish the contents of the subject report and only use it in the Supreme Court proceedings. The Court accepts that such a limitation can be imposed in terms of Rule 2.08(3)(d) of the FCC Rules.
Accordingly, the Court makes the orders as set out at the commencement of these reasons.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Kemp
Date: 18 March 2016
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