Seymour v Attorney-General (Cth)

[1984] FCA 329

Re: MICHAEL JEROME YOUNG, THE SPECIAL MINISTER OF STATE
And: ERIC ADRIAN QUIN; TINA WONG; DAVID YUNG TE CHOW; CHAROEN RIRASATIK and
DIRECTOR OF PUBLIC PROSECUTIONS
No. G 296 of 1984
Administrative Law - Evidence
56 ALR 168 - 3 FCR 293

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Wilcox J.(1)

CATCHWORDS

Administrative Law - Administrative Decisions (Judicial Review) Act - Committal proceedings - Discretion to review - Claim for public interest immunity - Evidence sought to be elicited in cross-examination - Affidavit of police officer claiming immunity - Whether magistrate may permit cross-examination of police officer - Scope of cross-examination.

Administrative Decisions (Judicial Review) Act 1977 s.5

Evidence - Privilege - Public interest immunity - Whether deponent claiming may be cross-examined - Whether claim must be made by Minister or departmental head.

HEADNOTE

1. A claim of public interest immunity may be made by any informed person, particularly one having official responsibilities relating to the subject matter of the claim. The ability to make such a claim is not confined to a Minister of State or his permanent head.

Duncan v. Cammell, Laird & Co. Ltd (1942) AC 624; Air Canada v. Secretary of State for Trade (No. 2)(1983) 2 AC 394, distinguished.

2. A deponent of an affidavit by which a claim of public interest immunity is raised is not immune from cross-examination to the extent to which the judge or magistrate in his discretion thinks fit to allow it.

Registrar of the Workers' Compensation Commission (N.S.W.) v. FAI Insurances Ltd unreported (Workers' Compensation Commission of New South Wales, McGrath J., 26 November 1979); R. v. Bebic unreported (Court of Criminal Appeal (N.S.W.), Full Court, 14 October 1982), followed.

3. Observations concerning the undesirability except in extraordinary circumstances of the court intervening in relation to a decision of a magistrate in the course of committal proceedings.

Souter v. Webb (1984) 2 FCR 193; Lamb v. Moss (1983) 49 ALR 533; Choo Cheng Kui v. Quinn unreported (Federal Court of Australia, Full Court, 25 September 1984); Sankey v. Whitlam (1978) 142 CLR 1 at 26 and 81-82; R. v. Iorlano (1983) 58 ALJR 22; Clyne v. Director of Public Prosecutions (1984) 58 ALJR 493, referred to.

Rogers v. Home Secretary (1973) AC 388; Alister v. The Queen (1984) 58 ALJR 97; Conway v. Rimmer (1968) AC 910; Burmah Oil Co. Ltd v. Bank of England (1980) AC 1090; Re Grosvenor Hotel (1964) Ch 464; MacPherson v. The Queen (1981) 147 CLR 512; R. v. Apostilides (1984) 58 ALJR 371, referred to.

HEARING

Sydney, 1984, September 28; October 12. #DATE 12:10:1984

APPLICATION.

Application for orders of review pursuant to the Administrative Decisions (Judicial Review) Act 1971 (Cth).

W.H. Nicholas Q.C. and J.R. Sackar, for the applicant.

G.R. James Q.C. and E. Fullerton for the first respondent.

B.R. Burbidge Q.C. and R.A. Baker, for the second respondent.

K. Chapple, for the fifth respondent.

Cur. adv. vult.

Solicitor for the applicant: Australian Government Solicitor.

G.F.V.

ORDER

Application dismissed. No order as to costs.

Direct that unless a Notice of Appeal is filed in the meantime exhibits may be handed out at the expiration of 21 days from today.

Application dismissed. No order as to costs.

JUDGE1

Eric Adrian Quin, the first respondent, is a Stipendiary Magistrate currently hearing committal proceedings brought by the fifth respondent, the Director of Public Prosecutions, against the second, third and fourth respondents, Tina Wong, David Yung Te Chow and Charoen Rirasatik. The charges against the three accused persons all relate to the alleged involvement of those persons with heroin during the month of April 1984. The precise details differ but in each case there are charges under s.233B of the Customs Act 1901 of conspiracy to import heroin into Australia, of being knowingly concerned in the importation into Australia of heroin and either of having possession, or of attempting to obtain possession, of heroin. In addition, there are various charges under the Poisons Act (NSW) 1966 of conspiracy to supply, and of supplying, heroin.

The material before me as to the nature of the allegations made against the accused is sparse but counsel for the Director of Public Prosecutions gave an outline of the prosecution case: on 19 April 1984 a Thai national, identified by name at the committal proceedings but generally referred to as "the courier"; entered Australia on a flight arriving at Sydney airport; he brought with him a suitcase; he took it to a motel, where he met some police officers; they found it contained a substantial quantity of heroin which they unpacked they repacked it with a small, though trafficable, quantity of heroin and with plaster of paris; they kept the suitcase under surveillance and over the ensuing 10 days, it led them to each of the three accused persons each of whom either had, or sought to obtain, possession of the suitcase and/or its contents.

Evidence has been given to the learned magistrate, during the course of the committal proceedings, by Detective Sergeant Ward of the Australian Federal Police Drug Unit. During cross-examination counsel for the accused took him to a number of matters relating to the circumstances in which the offences are said to have occurred. The matters which have already arisen, or which are forecast to be raised by counsel for the accused, include the following:

1. Whether the courier was a Thai police informant/agent;

2. Whether an interpreter used by the Australian Federal Police was a Thai police officer;

3. The positioning of various cameras used in police surveillance of persons involved in the matter;

4. Whether the courier used his real name;

5. Whether the courier was paid any money by police or any other person;

6. The present whereabouts of the courier;

7. The authority by which the courier entered and left Australia;

8. The whereabouts of certain moneys said to have been given to the courier;

9. The frequency and extent of the movements in and out of Australia by the courier.

It is said by counsel that these matters are relevant to the committal proceedings because the answers may show that the drugs the subject of the charges were not in fact imported or they may reveal one or more of what are said to be "defences" of entrapment or bias. The prosecution has indicated that it does not propose to call the courier to give evidence before the magistrate.

Objection was taken to the cross-examination of Detective Sergeant Ward in relation to the matters I have mentioned. In support of that objection there was tendered to the Magistrate an affidavit sworn by Detective Chief Inspector, JF Wheatley, the officer in charge of the drug operations unit in New South Wales of the Australian Federal Police. Detective Chief Inspector Wheatley deposed to the existence of regular co-operation between police forces in various countries in relation to the drug trade. In his affidavit he expressed the opinion that to permit questions in relation to the matters I have mentioned would be undesirable in the public interest because the answers might reveal police methods of operations to the prejudice both of future activities of the Australian Federal Police and of relationships with overseas police forces. He also expressed concern that the revelation of information regarding surveillance of drug offenders would be likely to assist those in the drug trade to mount counter surveillance and would endanger the life or safety of informants and law enforcement officers.

There was initially a question raised on behalf of the accused before the magistrate as to whether Detective Chief Inspector Wheatley was an appropriate person to invoke the immunity which used to be called Crown privilege but is now usually referred to as "public interest immunity": see Rogers v Home Secretary (1973) AC 388 at pp 400, 406-407, 412, Sankey v Whitlam (1978) 142 CLR at pp 38, 95 and Alister v The Queen (1984) 58 ALJR 97 at p 98. In Duncan v Cammell, Laird & Company Limited (1942) AC 624 at p638 Viscount Simon LC, speaking for a unanimous House of Lords, described as an "essential matter" that the decision to object should be taken by the Minister administering the Department of State responsible for the relevant area of public interest or, in exceptional circumstances, his Permanent Head: see for an example of such circumstances Air Canada v Secretary of State for Trade (1983) 2 WLR 494. That view was closely related to the doctrine that a certificate in proper form was conclusive: see Duncan v Cammell, Laird and Co at pp 642-643. The conclusiveness of the certificate was denied for the purposes of English law by the decision of the House of Lords in Conway v Rimmer (1968) AC 910 and for Australian law by that of the High Court in Sankey v Whitlam. In both of those cases the point was made that the invocation of public interest immunity did not depend upon a certificate from a Minister or other government official; any party could take the point and, indeed, it was the duty of the court itself, even in the absence of an intervention by a party, to consider in appropriate cases whether evidence should be excluded on this ground. It follows that a claim made by any informed person, and especially a person having official responsibilities in the relevant area, must be considered by the court on its merits. It was no doubt because of those circumstances that counsel for the accused did not continue to press any point about the status of Detective Chief Inspector Wheatley to intervene to claim the immunity.

However, counsel did not concede that the claim for immunity was justified or that it would be a proper course for the magistrate to accede to it. They claimed the right to cross-examine Detective Chief Inspector Wheatley. After hearing argument the Magistrate ruled as follows:

". . . it seems to me that the general law applies, namely, that the issue of admissability of the material sought to be withheld on the basis of the public interest should be the subject of a trial, that is a trial within a trial of that very issue, that each party should have the right to call and examine witnesses and to cross-examine those, if any, of the opposite party. It is then for the tribunal before which such a trial proceeds to fix the circumstances in which the trial should proceed so as to avoid the general dissemination of the so-called 'immune' material which turns out ultimately to be immune. i am not convinced the defence counsel has the right to cross-examine a witness called in such a trial on a general issue. That is in the general issues in these particular circumstances raised in the committal proceedings. He is, . . . restrained by the rules of relevance. . . . the defence in these committal proceedings should have the benefit of cross-examination of the author of the affidavit which has been tendered and of any other witness who may be called on the issue of non-disclosure in the public interest".

At the request of the prosecution the magistrate has deferred giving effect to that ruling, and has proceeded with other evidence, pending the opportunity for review in this Court of its correctness in law.

The applicant, the Special Minister of State, is the Minister responsible for the operations of the Australian Federal Police. He has filed an Application in this Court, under the Administrative Decisions (Judicial Review) Act 1977, seeking review of the decision of Mr Quin, as set out in the extract quoted above. He also seeks an injunction restraining Mr Quin from permitting the cross-examination of Detective Chief Inspector Wheatley upon his affidavit and an order staying the committal proceedings insofar as they involve the giving of any evidence which is claimed in the affidavit of Detective Chief Inspector Wheatley to be privileged on the grounds of public interest.

In my judgement in Souter v Webb (11 July 1984, unreported) I referred to the substantial number of decisions, both in this Court and in the Supreme Court of New South Wales, in which the view had been expressed that it is generally undesirable for a superior court to intervene in relation to the decision of a magistrate to commit for trial and, a fortiori, in relation to a matter still before the magistrate. The leading authority, in this Court, in relation to that latter situation, is Lamb v Moss (1983) 49 ALR 533 at p 564 in which a Full Bench of this Court held that the power to make an order of review under the Administrative Decisions (Judicial Review) Act in respect of committal proceedings "should be exercised only in most exceptional cases, especially in respect of a decision in the course of proceedings". That approach was recently applied by a Full Bench of the Court (Fox, McGregor and Beaumont JJ) in Choo Cheng Kui v Quinn (25 September 1984 unreported). It has been endorsed on a number of occasions in the High Court of Australia: see Sankey v Whitlam in which both Gibbs ACJ at p 26 and Mason J at pp 81-82 refer to the necessity for a "special reason" to intervene. The Queen v Iorlano (1983) 58 ALJR 22 and Clyne v Director of Public Prosecutions (3 September 1984, unreported).

Litigation concerning the correctness of a ruling of a magistrate made in the course of committal proceedings may turn out to be merely unncessary; perhaps because of evidence which subsequently emerges in the proceedings or because of a course taken by one or other of the parties. It is much more likely that such litigation will be actually detrimental to the orderly progress of the matter; causing a degree of delay inconsistent with the just and efficient administration of the criminal law. Although it is undesirable to attempt any exhaustive statement of the circumstances in which a judicial discretion should be exercised it seems to me that it would normally be undesirable to enter into review of a magistrate's ruling on a matter of evidence except where the ruling related to a genuine and important question of legal principle not dependent upon the detail of the evidence in the particular case. Sankey v Whitlam furnishes an example of such a case.

Counsel for the applicant argue that the present is such a case. They contend that a deponent to an affidavit claiming public interest immunity may not, as a matter of law, be required to undergo cross-examination by parties to the litigation in respect of which the immunity is sought, that the magistrate erred in failing to give effect to that rule and that there is a substantial public interest - both in relation to this case and generally - in the matter being considered at this stage by a superior court. As they say, the proposition, in the absolute form for which they contend, does not depend upon the detail of this case; it would apply equally to any affidavit in any litigation, criminal or civil, in which a deponent puts before a court matters of fact or opinion for the purpose of persuading the court to exclude evidence upon public interest grounds. Moreover, counsel argue, there is no direct authority in point so that it is appropriate that the opportunity be taken to rule upon the matter at this stage.

I think that these arguments do furnish grounds for this Court to exercise its discretion to review the magistrate's ruling. If the correct view is that no cross-examination of a deponent to an affidavit claiming privilege may be permitted, then the Court is in a position to apply that principle to Detective Chief Inspector Wheatley; nothing will turn upon the precise circumstances of this case. If, on the other hand, there is no such principle, then it will be for the magistrate to determine, in relation to this particular case and as it develops before him, the extent of cross-examination, guided by such general statements of principle as may appropriately be made.

There is a paucity of reported judicial reasoning in relation to the cross-examination of a deponent to an affidavit claiming public interest immunity. One reason, no doubt, is that the question could not arise in a context in which the certificate of the responsible Minister was required to be treated by the court as conclusive. Only in recent years have the courts unequivocally asserted an entitlement to examine for themselves a claim to immunity. Moreover, and this is perhaps more significant, a claim to public interest immunity usually arises in relation to documents. In such a case an available course to be taken, once the question does arise, is for the court itself to consider the documents, as happened in many of the leading cases including Conway v Rimmer, Sankey v Whitlam and Burmah Oil Co Limited v Bank of England (1980) AC 1090 and more recently in Alister. Where the nature of the document is in contest, inspection is likely to be a more satisfactory course than cross-examination of the claimant for immunity. In other cases, where the claim is based upon the fact that the document is within a particular class of documents, it may not be necessary for the court itself to examine the document; it may be enough that it is satisfied that the document does fall within the relevant class: see the discussion on inspection by the court in each of Burmah Oil and Air Canada and also Lanyon Pty Limited v The Commonwealth (1974) 129 CLR 650 at p 653. But, if there is a doubt whether the documents are within the class, inspection is an available course.

However, as Gibbs ACJ pointed out in Sankey v Whitlam at p 38, the principles relating to public interest immunity apply in relation to oral as well as to documentary evidence. In the case of oral evidence the problem is less easily resolved. Where the relevant evidence is intended to be elicited in chief, it may be practical for the court to consider the matter on the basis of an outline by counsel of the nature of the evidence proposed to be led from the witness; perhaps a proof of the anticipated evidence can be supplied to the court. In the case of evidence sought to be adduced in cross-examination the difficulty is more pronounced. The cross-examiner - particularly in committal proceedings where a deal of 'fishing' is customary - will often be unable to say in advance what evidence is likely to emerge from his line of questions or to say where those answers are likely to take him in relation to further questions. He may be unwilling to reveal in advance, publicly or even to his opponent, his line of questioning. In such a case the presiding officer has no alternative but to rule upon each disputed question as it arises. But, in just such a case, he may be especially assisted by an affidavit sworn by an informed responsible person which puts into context the matters likely to be canvassed and which will give him a basis for considering whether a particular question is likely to result in the disclosure of evidence which ought not, in the public interest, to be revealed.

In re Grosvenor Hotel (1964) 1 Ch 464 an affidavit claiming privilege was sworn by the Minister of Transport. The circumstances were unusual in that the Treasury Solicitor had caused immunity to be claimed by a party, the British Railways Board, at the instance of the Permanent Secretary and before the Minister had himself considered the matter. All concerned accepted that the Minister's objection, if properly taken, was conclusive but the opposing party argued that, in the circumstances, the Minister's affidavit was defective; it did not demonstate that he had formed a fresh, unbiased opinion on the matter. Moreover, the objection was a class claim and the affidavit did not identify the relevant class. That party submitted that the documents ought to be required to be produced unless the Minister submitted to be cross-examined on his affidavit. Cross J, at p 475, commented:

"I do not doubt that I could make such an order - and I should not hesitate to do so if I thought that the Minister was displaying any lack of candour or any tendency to prevaricate. But there is no question of anything of that sort in this case, and in these circumstances I think that for me to force the Minister to submit to cross-examination on these points at this stage would be wrong and might well create a totally false impression of the position."

His Lordship went on to make an order that if the Minister wished to object to production he should file a further affidavit dealing with the matters raised. The applicant for discovery appealed. Harman LJ, with whom Donovan LJ and Russell LJ agreed, commented at p 481:

". . . the judge said when it came before him that he did not doubt that he had jurisdiction to order cross-examination if he thought it was a proper case for it and I need not quarrel with that view today".

I am aware of only one reasoned decision in relation to the cross-examination of a deponent to an affidavit claiming public interest immunity; the unreported decision of the Workers' Compensation Commission of New South Wales in Registrar of the Workers' Compensation Commission of New South Wales v FAI Insurances Limited (26 November 1979). In that case the Chairman of the Commission, in his capacity as Chairman of the Insurance Premiums Committee, had sworn an affidavit claiming immunity in relation to the production of certain documents relating to insurance. Counsel for FAI Insurances Limited claimed to be entitled to cross-examine the Chairman upon his affidavit. This claim was rejected by McGrath J who said at p 8:

"If a respondent has an unfettered right to cross-examine the Chairman on an affidavit such as this, I do not see how any restriction could be placed on the right other than by reference to questions of relevance. It seems to me that cross-examination, restricted only by considerations of relevance, could result in the disclosure of the contents of the very documents for which protection is sought.

It is my view that it is for the Judge, and not for the parties, to determine what evidence should be sufficient to resolve the claim for privilege, and it is for the Judge to determine by what means any deficiency in the evidence or material should be remedied to the end that the evidence should be sufficient for him properly to decide the question, but that the means of providing the evidence, and deciding the question, should not be such as to endanger the non-disclosure until such times as the Judge orders the disclosure to be made."

This decision is not, of course, as a matter of precedent, binding upon this Court although any view expressed by McGrath J is entitled to respect. The protagonists on each side of the instant litigation claim that what was said in the FAI case supports their submission but it is important to note that the actual question in that case differs from that before me. The issue for McGrath J was whether a court is bound to permit cross-examination on behalf of a party claiming to suffer disadvantage by denial of access to documents in relation to which a claim of public interest immunity had been made. The issue before me is whether a court is entitled to permit cross-examination of the deponent by the party claiming to suffer disadvantage. The authorities are clear that in relation to the question of public interest immunity the court is required to play an unusually active part. The court does not - as in relation to many other evidentiary matters - act as a mere umpire to determine issues raised by the parties. Once the question arises it is for the court to resolve, regardless of the attitude of the parties. In Conway v Rimmer at p 971 Lord Morris said that "the inherent power of the court must include a power to ask for a clarification or an amplification of an objection to production". It is consistent with the concept of judicial initiative in this area that the court may be entitled, although not bound, to receive evidence elicited under cross-examination by way of clarification or amplification of the basis of the claim for immunity. Cross J, in Grosvenor Hotel, appears to have regarded clarification by way of further affidavit evidence and clarification by way of cross-examination to be equally available options and I do not understand Mc Grath J to have taken a different view. On the contrary, his reference to it being "for the Judge . . . to determine what evidence should be sufficient . . (and) by what means any deficiency in the evidence or material should be remedied" is a clear assertion of the right of the court to select the appropriate procedure to resolve the matter.

Although I am not aware of any case, other than FAI, in which there has been a reasoned decision in relation to the cross-examination of a deponent to an affidavit claiming public interest immunity, I am aware that, at least in New South Wales since Sankey v Whitlam, judges have not infrequently allowed cross-examination of such deponents. Indeed, it appears that this course was allowed to be taken in the New South Wales Court of Criminal Appeal in The Queen v Bebic (Samuels JA, Nagle CJ at CL and Cantor J, unreported 14 October 1982). The matter is mentioned, although the issue is not discussed, at p 61 of the reasons of the Court. The applicant says that such a course is incorrect, that the question of disclosure is one between the court and the claimant for immunity alone, in relation to which a party has no standing. He is not entitled to cross-examine even at the invitation, or by the permission, of the court; he is not even entitled to put submissions to the court as to the course which ought to be taken.

I find nothing either in authority or in principle to justify such an extreme position. As Lord Reid pointed out in Conway v Rimmer at p 953, the parties see the reasons advanced by the claimant for immunity; although, there may be exceptional cases, as in Bebic, (judgement on privilege 27 May 1982 pp 4-5) where a court will refuse disclosure to the parties of the affidavit claiming privilege. The reason for the general rule is that the parties have a legitimate interest in knowing what is the basis upon which material possibly relevant to their litigation is to be withheld from disclosure. To the extent of the permitted disclosure, the parties have always been regarded as entitled to put submissions on the validity of the claim for immunity and to appeal against an unfavourable ruling on that question. It is true that the leading authorities recognise that, in making a decision as to whether documents should be produced, the court may have to consider the documents in private and without the benefit of submissions on behalf of the parties. However, the reason is not that the content of the documents is no business of the parties but rather that the production of the documents to the parties, or even to their legal representatives, would have the effect of disclosing material which the court might ultimately hold should not be disclosed. The judgement in Alister of Gibbs CJ, Wilson, Brennan and Dawson JJ, delivered after the Court had inspected the relevant documents, is illuminating. At p 124 their Honours referred to their inspection and their view that none of the documents was relevant to the issues at the trial or could have been used for the purpose of cross-examining the Crown witnesses. They went on:

"When we say that, we do not discount the significance of the argument that the parties may be more able than the members of the court to discern the possible relevance of material in a trial of this kind, but we remain satisfied that the material would not assist the appellants . . . .

the disposal of any point in litigation, without the fullest argument on behalf of the parties, is a course to which every court reacts adversely, however untenable the point in issue may first appear, and however unlikely it is that argument will assist it. the present case evokes the same reaction. but it is the inevitable result when privilege is rightly claimed on grounds of national security".

These comments would have been quite inappropriate if the situation were that the parties not only had no entitlement to see the documents but that the court had no discretion to give access to them for the purpose of considering the claim to immunity or to hear them on that question. Murphy J thought that counsel for the parties should have been allowed to examine the documents in order to assist the Court on the question whether those documents would have assisted the defence at the trial.

There is no reason of principle for adopting a rule excluding the parties from participating in the determination of a claim to public interest immunity. The position will always be that at least one of the parties will perceive himself to have an active interest to obtain access to the relevant material in the hope that it may be used to assist his case. As Lord Reid pointed out, in Conway v Rimmer at p 940, the determination of public interest immunity involves a contest between the "public interest that harm shall not be done to the nation or the public service by disclosure of certain documents" and the "public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done." There can only be advantage to a court in having the maximum possible assistance in making a judgement as to which element of the public interest is to be accorded priority in a particular case. It is in the interests of the court to have the fullest possible information, perhaps assisted by the submissions of counsel retained on behalf of the claimant for immunity, in relation to the weight of that claim: reflecting the first of the two elements of public interest mentioned by Lord Reid. Similarly, it is in the interests of the court to have the fullest possible assistance, subject only to the avoidance of undesirable disclosure of the disputed material, from representatives of the parties in relation to the case for disclosure; the parties being especially able to assist in relation to the weight of Lord Reid's second element of public interest. The parties may be able to assist the court by submissions that the documents are not of a class appropriate to be accorded any immunity or, if they have had access, that a particular document ought to be disclosed either because its content does not require suppression or because any case for suppression is outweighed by the importance of the information to the particular case.

It seems to me that similar considerations apply to the cross-examination of a deponent to an affidavit. In many, perhaps most, cases there will be no occasion for oral evidence: the affidavit will be clear on its face and the court will be in a position to make a ruling. In other cases the court may "ask for a clarification or an amplification of an objection to production". I see no reason to tie the hands of the court as to the manner in which it obtains such clarification or amplification. Perhaps, as in the Grosvenor Hotel case, the court will seek a further affidavit but this may not always be the best way of obtaining the requisite information. The court may prefer to ask specific questions of the claimant in order to obtain a better understanding of the basis of the claim, the nature of the material in respect of which the objection is taken or the manner in which it is said that the public interest will be jeopardised. As a general principle, there is no reason to deny to the parties to the litigation the opportunity of hearing any oral evidence which is given in clarification or amplification in response to questions from the court; they would, after all, usually see any further affidavit required by the court. Submissions on behalf of a party as to the validity of the claim may include criticism of the sufficiency or precision of the claimed basis for exemption. Such submissions may persuade the court to put further questions to the claimant. If such matters may be raised by counsel for a party indirectly with the claimant, it is difficult to see any reason to deny to the court the option of allowing counsel to raise the matters directly by way of cross-examination of the claimant. It seems to me that the fundamental rule is that it is for the court to determine the course appropriate to be taken in the particular case having regard to two general principles; that care should be taken to ensure against any disclosure of the information in relation to which immunity is claimed unless and until the court has determined that the claim is without foundation or that the interests of justice require the claim to be overridden and the information disclosed and that, to the maximum extent possible, the parties to the litigation should be permitted to participate in the determination of their right to have access to information pertaining to the case. As Bebic illustrates, the appropriate procedure may range all the way from permitting the parties to cross-examine the deponent, and to put to the court submissions on his claim, to the other extreme of denying to the parties any knowledge of the basis of the claim.

The applicant contends that, as a matter of law, the magistrate is precluded from permitting cross-examination of Detective Chief Inspector Wheatley. This submission goes too far and must be rejected. It does not follow that the magistrate is bound to permit cross-examination. I respectfully agree with McGrath J that he is not so bound. Both considerations of principle and such guidance as the authorities afford indicate that it is for the magistrate to determine whether he would be assisted by questions directed by representatives of the parties to Detective Chief Inspector Wheatley relating to the basis of the claim made by him and the extent of any such questioning.

In determining those matters he will take into consideration any difficulty he may find in understanding the nature of the public interest relied upon by Detective Chief Inspector Wheatley or the detriment which would flow from revelation of information about police techniques and contacts. It may be that, upon further reflection, the magistrate will conclude that there is no such difficulty, so that cross-examination is not necessary; but that is a matter for him. And, of course, if the magistrate does decide to permit cross-examination upon the basis of the claim it will be his responsibility to ensure that this cross-examination does not itself expose the information in relation to which the claim for immunity is made. That information should only be revealed as a result of a deliberate decision to that effect either rejecting the claim for immunity or holding that the detriment to the public interest involved in the disclosure is outweighed by the benefit to the public interest in having this information available to the parties for the proper administration of justice in this case.

It is not clear to me what was intended by Mr Quin in his reference to the receipt of evidence from other parties, in opposition to the claim for immunity, and the holding of a "trial within a trial". The magistrate may have had in mind a procedure such as that sometimes adopted in relation to an objection to the admissibility of confessional material based upon alleged duress, in relation to which evidence is given on each side on the issue of voluntariness: the voir dire. If so, I think that the analogy could be misleading. In such a case a party has a right to litigate the admissibility of the material which right may only be able to be exercised by adopting such a procedure. In the instant case there is no such right. Consistently with the emphasis in the authorities upon the importance of procedural flexibility, to meet a diversity of cases, it would be wrong to rule out the possibility of a court receiving evidence called by a party against the claim for immunity. For example: it may be that a party could produce evidence to show that the person claiming the immunity did not hold the official position he claimed and which was necessary to enable him to say that the relevant documents fell within a particular class; a party may be able to show that the information had been so widely disseminated to the public that suppression was pointless: see per Stephen J in Sankey v Whitlam at p 64. In the rare case of evidence, relevant to the determination of the claim for immunity, being offered by a party I see no reason why the evidence should not be admitted by the court, and subjected to any appropriate cross-examination. To that extent there will be a procedure which might be described as a "trial within a trial" but the internal trial will be of limited ambit and is likely to be of short duration.

The magistrate stated in his reasons that he was "not convinced" that the defence counsel had the right to cross-examine a witness in the "trial within a trial" upon the general issues in the case. I take this statement to be a response to the claim made before me, and apparently put to the magistrate, that the defence were entitled to cross-examine Detective Chief Inspector Wheatley not only in relation to the foundation of his claim to public interest immunity but also in relation to the circumstances surrounding the alleged offences. I have already expressed the view that counsel have no right to cross-examine at all but merely an opportunity to cross-examine to the extent that the magistrate may permit, in the exercise of his discretion as to the appropriate procedure. But if the magistrate does permit cross-examination, that cross-examination must be restricted to the issue in relation to which the permission is given. It is in relation to that issue only that Detective Chief Inspector Wheatley would be a witness before the magistrate. Such a view accords with the course taken at a criminal trial in which the judge holds a hearing on the voir dire to determine the admissibility of confessional material. He does so in the absence of the jury, hearing evidence which goes to the ruling as to admissibility which he will have to make: see MacPherson v The Queen (1981) 147 CLR 512 at pp 523, 542-543. It would not accord with usual practice for counsel for the defence to be permitted to require a person called by the prosecution as a witness only on the voir dire to return for further cross-examination in the presence of the jury in relation to the general issues in the trial. To allow such a course would be to erode the responsibility of the prosecutor to determine what witnesses will be called in his case on the general issue in subversion of the principles enumerated by the High Court in The Queen v Apostilides (1984) 58 ALJR 371. It would make the extent of the accused person's right to adduce evidence by way of cross-examination depend upon the identity of the person who happened to take the objection as to public interest immunity. And the threat of such a course may, in an unusual case, deter from doing so a person whose duty it was to draw to the attention of the court a claim for public interest immunity. I agree with the magistrate in rejecting the submission of counsel for the respondent accused persons that cross-examination of Detective Chief Inspector Wheatley, if permitted by the magistrate, may extend to matters relevant to the proceedings generally but not relevant to the issues of public interest immunity raised by his affidavit.

During the course of argument counsel for the second and fourth respondents indicated the basis upon which it was argued that matters sought to be put to Detective Chief Inspector Wheatley, and indeed to Detective Sergeant Ward, were relevant to the general issues before the magistrate. In respect of many of these matters, I have considerable difficulty in detecting any relationship between the questions sought to be put to the witness and any issue which the magistrate will have to determine. Moreover, it is difficult to see that some of the matters would be within the personal knowledge of the witness. I have an impression that some of the questions would only be answerable on the basis of hearsay information. There is, of course, no suggestion of the questions being admissible upon the basis of eliciting admissions; these officers are not parties. However, consistently with the view I have expressed as to the role which this Court should exercise in relation to committal proceedings it is inappropriate for me to pursue these matters. If objection is taken, questions of relevance and admissibility will be for the magistrate to determine. Only if he is of the view that a question is relevant to, and otherwise admissible in, the proceedings before him will it be necessary for him to consider any issue as to whether the question should be rejected as tending to elicit evidence the subject of public interest immunity.

The views which I have expressed lead to the conclusion that the applicant is not entitled to the relief which he seeks. The Court has power, under s.16 of the Administrative Decisions (Judicial Review) Act, to make a declaration of rights or an order by way of injunction. A formal declaration of rights is rarely appropriate in relation to a determination upon a procedural question and it is not necessary in this case; my reasons will speak for themselves. Still less would it be appropriate to make an injunction moulded to reflect my view as to the extent of permissible cross-examination. I need simply order that the application be dismissed.

The applicant has failed in its fundamental submission of law but the result is well removed from that contended for on behalf of the second and fourth respondents - the third respondent not appearing. Indeed it may be that, in its practical effect, my ultimate view is more favourable to the position adopted by the applicant than to the second and fourth respondents. In the whole of the circumstances I am of the opinion that there ought to be no order as to the costs of the Application.