SG v New South Wales Crime Commission (No 6)

[2022] NSWSC 779

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

SG v New South Wales Crime Commission (No 6) [2022] NSWSC 779

Hearing dates:

On the papers

Decision date:

14 June 2022

Jurisdiction:

Common Law

Before:

Rothman J

Decision:

(1) Pursuant to ss 130 and 131A of the Evidence Act 1995 (NSW), the defendant is excused from disclosing any documents or parts of documents that contain information referred to in these reasons for judgment;

(2)   Costs of the Motion will be costs in the cause.

Catchwords:

CIVIL PROCEDURE – discovery, subpoena and production – grounds for resisting – objection to production and inspection – public interest immunity – immunity granted – another process may be available if redacted material significant and capable of being protected

Legislation Cited:

Crime Commission Act 2012 (NSW), s 80

EvidenceAct 1995 (NSW), s 130, 131A

Ombudsman Act 1974 (NSW), s 35A

Cases Cited:

Alister v the Queen (1984) 154 CLR 404; [1984] HCA 85

Commonwealth v Northern Land Council (1993) 176 CLR 604; [1993] HCA 24

Kaldas v Barbour (2017) 350 ALR 292; [2017] NSWCA 275

Sankey v Whitlam (1978) 142 CLR 1; [1978] HCA 43

SG v New South Wales Crime Commission [2016] NSWSC 1615

SG v New South Wales Crime Commission (No 2) [2018] NSWSC 600

SG v New South Wales Crime Commission (No 3) [2019] NSWSC 1906

SG v New South Wales Crime Commission (No 4) [2021] NSWSC 92

The Ombudsman v Koopman (2003) 58 NSWLR 182; [2003] NSWCA 277

The Ombudsman v Laughton (2005) 64 NSWLR 114; [2005] NSWCA 339

Category:

Procedural rulings

Parties:

SG (Plaintiff)
New South Wales Crime Commission (Defendant)
Attorney General of the Commonwealth (Applicant)

Representation:

Solicitors:
Laxon Lex Lawyers (Plaintiff)
Crown Solicitor’s Office (Defendant)
The Australian Government Solicitor (Applicant)

File Number(s):

2015/194130

Publication restriction:

Publication restriction as to evidence or any material that would identify any individual mentioned in the proceedings, other than legal practitioners.

Judgment

1. HIS HONOUR: The Court is required to deal with a claim for public interest immunity brought by the defendant. In the substantive proceedings, the plaintiff, SG, seeks damages for breach of contract.

2. The contract is said to have existed between the plaintiff and the defendant, the New South Wales Crime Commission (hereinafter “the Commission”). It is alleged that the plaintiff was a confidential informer to, or source of, the Commission and the contract provided for the Commission to pay sums of money to the plaintiff for expenses and for information provided. Further, the arrangement and/or contract between the Commission and the plaintiff was that the relationship would remain confidential.

3. It is said that the confidentiality of the arrangement, in circumstances where, at least for some period of time, the plaintiff was imprisoned, was an essential element of the contract between the parties. Briefly, the plaintiff alleges in the Statement of Claim that the plaintiff was required to seek out information for the Commission in relation to criminal activities and provide that information to the Commission in a timely manner.

4. The plaintiff alleges that these activities were undertaken and performed. Otherwise, the Commission would, it is alleged, from time-to-time, direct the plaintiff to seek out particular information and this work was also performed and, where information of the kind was obtained, provided to the Commission in a timely manner.

5. The Statement of Claim alleges that the contract between the parties provided that, during the contract’s subsistence, and while the plaintiff remained reliable and productive, the Commission would pay $500 per week for expenses to the plaintiff. Over and above the expense payment, the plaintiff would be paid for actionable intelligence on a basis calculated in accordance with the system maintained by the Commission. As already implied, the plaintiff alleges that the Commission has breached the contract by not paying monies that were otherwise due and by breaching the confidentiality that was required.

6. Thus far, the Commission has sought to dismiss the proceedings on a number of bases, but, substantially, on the basis that the provisions of s 80 of the Crime Commission Act 2012 (NSW) (hereinafter “the Act”) prevent the disclosure of any and all information that the plaintiff would be required to prove in order to make good the claim. The foregoing summary of the basis upon which the Commission has sought to dismiss the proceedings is not intended to summarise, or to recite accurately, the basis pleaded in past Motions before the Court.

7. On 17 November 2016, the Court dealt with the operation of s 80 of the Act and the secrecy provisions. In so doing, the Court, as presently constituted, determined that s 80 of the Act did not go beyond the disclosure of investigations, the disclosure of evidence and any information that would jeopardise or otherwise disclose aspects of such investigation, reporting or collating of evidence, or, in other words, the Commission’s special statutory functions. ^[1]

   1. SG v New South Wales Crime Commission [2016] NSWSC 1615 (hereinafter “the first judgment”), at [41].

8. During the course of those proceedings, the Court was not provided, by either party, with reference to the judgment of the Court of Appeal in The Ombudsman v Koopman. ^[2] Nor was the Court provided with a reference to the judgment of the Court of Appeal in The Ombudsman v Laughton. ^[3]

   2. The Ombudsman v Koopman (2003) 58 NSWLR 182; [2003] NSWCA 277.

   3. The Ombudsman v Laughton (2005) 64 NSWLR 114; [2005] NSWCA 339.

9. Those judgments of the Court of Appeal concerned the provisions of s 35A of the Ombudsman Act 1974 (NSW) and determined that the privative provision operated in a manner that was confined to acts and omissions done (or omitted to be done) in exercising (or refusing to exercise) the statutory powers of obtaining information and investigating complaints with which the Ombudsman was, subject to certain discretionary provisions, required to deal. The judgments of the Court of Appeal in Koopman and Laughton were recently the subject of discussion in Kaldas v Barbour. ^[4]

   4. Kaldas v Barbour (2017) 350 ALR 292; [2017] NSWCA 275.

10. While the Court was not provided with the assistance that derives from the judgments of the Court of Appeal in either of Koopman and Laughton, the effect of the first judgment on the operation of s 80 of the Act was to like effect. In other words, the investigative powers of the Commission, and matters ancillary thereto, were caught by the provisions of s 80 of the Act, but the “corporate” or administrative activities were not.

11. As pointed out in the first judgment, the engagement of a source or confidential informant covered the corporate functions of the Commission, but in a manner that was ancillary to its special strategy functions. As a consequence, the Court, as presently constituted, was not prepared to dismiss the proceedings on the basis of the operation of s 80 of the Act. Nor was it prepared to rule that no documents could be produced.

12. As a consequence, further proceedings were taken and, without criticism, were necessary. In 2018, the Court, as presently constituted, dealt with the further Motion for the dismissal of the proceedings and an objection to the legal representatives. ^[5] The proceedings were not dismissed and the objection to the legal representatives was dismissed.

    5. SG v New South Wales Crime Commission (No 2) [2018] NSWSC 600 (hereinafter “the second judgment”).

13. In 2019, the Court dealt with the question of costs. ^[6] In 2021, the Court dealt with an application by the plaintiff by Motion on notice to set aside subpoenas served by the Commission; an application by the Attorney General of the Commonwealth (hereinafter “the Attorney”), by Motion on notice, to set aside subpoenas served by the plaintiff; and, an application by the Australian Federal Police (hereinafter “the AFP”), in relation to documents produced by them, for access to be denied, pending the AFP retrieving the documents and redacting them.

    6. SG v New South Wales Crime Commission (No 3) [2019] NSWSC 1906 (hereinafter “the third judgment”).

14. The last-mentioned application was said to be pursuant to a memorandum of understanding between the AFP and the Commission as to the confidentiality of information provided by the Commission to the AFP. It is unnecessary to reiterate the orders made in those proceedings. The judgment is otherwise available. ^[7]

    7. SG v New South Wales Crime Commission (No 4) [2021] NSWSC 92 (hereinafter “the fourth judgment”).

15. The effect of the foregoing is that one aspect of the objections by the Commission to the production of documents and/or information remained extant. That objection was on the basis of public interest immunity. There are 17 volumes of documents relevant to the Commission’s claims for public interest immunity. The Motion, filed 30 August 2021, seeks orders pursuant to the provisions of ss 130 and 131A of the EvidenceAct 1995 (NSW).

16. The context in which the public interest immunity claim is made is that, on 28 May 2021, the Court, as presently constituted, made suppression orders relating to certain information, including continuing suppression orders in relation to the identity of the plaintiff in the proceedings.

17. The Commission, in objecting to the production of documents or documents that have not been redacted, reagitates the issues under s 80 of the Act. The necessity to reagitate that issue arises from the nature of the ruling made initially on the operation of s 80 of the Act.

18. Because of the nature of the proceedings, some of the documents — which are adjectivally relevant to the contractual issue between the parties, the making of the contract, which was a corporate function of the Commission — are said to relate to the disclosure of investigations (other than those of or conducted by the plaintiff); the disclosure of evidence in relation to ongoing investigations; and information that would jeopardise or otherwise disclose aspects of such an investigation or proceeding, including the reporting or collating of evidence.

19. No party submits that the provisions of s 80 of the Act implicitly exclude any other public interest immunity that would be available to the Commission (as distinct from some other Government agency). Nor does any party submit that the terms of s 80 of the Act is the extent of any public interest immunity on which the Commission may rely, if this latter proposition is different from the first.

20. The 17 volumes of documents contain 1,289 documents. Some of them have been produced to the plaintiff in a redacted form, but some have not been produced.

21. Some of the documents relate to payments made to other sources or in other operations, said to be relevant in order for the Court to determine whether the plaintiff carried out the functions required and/or the rate of pay utilised for the purpose of calculating the damages. As a consequence of the inability of the plaintiff to address in detail the nature of the documents and their content, it has been necessary for the Court to examine the documents in question.

22. The examination by the Court is not intended to suggest that the Commission or its officers or advisers would, in the summary provided, mislead the Court. On the contrary, the Court has been greatly assisted by the summary that has been provided. Unfortunately, for obvious reasons, the summary does not detail the kind of information that is in the document. It was, therefore, necessary for the Court to examine each document.

23. Having made that comment, the Court is also informed by the Open Affidavit of Timothy James O’Connor, affirmed 27 August 2021, who is the Executive Director (Criminal Investigation) at the Commission. The Affidavit refers to the documents being in five classes: information relating to other human/registered sources, but not the plaintiff; information prejudicial to the criminal investigations of the Commission; information prejudicial to inter-agency relationships; information prejudicial to unresolved investigations; and, information, not hitherto known to the plaintiff, placing other people at risk or harm.

24. In the foregoing classes, the description provided by the deponent categorises them by the risk of prejudice, without suggesting that actual prejudice would arise. For example, information may prejudice the relationship between the Commission and the AFP, but it has been excluded not on the basis that it will prejudice such a relationship; rather, it has been excluded on the basis that it presents a risk of prejudice.

25. Further, all of the other documents that are subject to a claim of public interest immunity have been provided to the plaintiff in a form that is redacted. The information redacted is that information which fits within the foregoing classes of information. Thus, the identity of a registered source, other than the plaintiff, would be redacted from information otherwise provided. In some circumstances, the entirety of a document is the subject of objection.

26. The various classes that are said to give rise to public interest immunity are then detailed. The Affidavit, in paragraphs [7] to [10] inclusive, deals with the necessity and practice of the Commission in utilising confidential sources, and the kind of information that is provided by such sources. The information in the Affidavit accords with the Court’s general knowledge of the operation of the Commission.

27. Paragraphs [11] and [12] of the Affidavit deal with the Commission’s methodology and why it is necessary, in the public interest, to resist disclosure of information that would alert those currently involved, or who may become involved, in criminal activity, to the methodology utilised by the Commission. In some respects, this is a well-rehearsed aspect of public interest immunity. In other respects, some of the methodology is so well-known that is difficult to imagine that those who are or would be involved in criminal activity would be unaware of such methods.

28. The class of documents that relates to risk to other people involves information relating to persons of interest and their associates. The Affidavit maintains that disclosure of such information would place persons, named in such documents, at risk of harm.

29. Earlier in these reasons, the Court referred to the potential prejudice to the relationship between agencies. The risk of damage to the relationship between agencies is the subject of comment in the aforesaid Affidavit at paragraphs [14] to [18] inclusive, which deals with the necessity to maintain confidentiality between, amongst other things, law enforcement agencies.

30. While one may consider that the relationship between law enforcement agencies will not suffer as a consequence of any orders made by the Court, such an assumption is not necessarily warranted. If the Commission is liable to produce to a former prisoner, in proceedings of this kind, information that has been provided to the Commission as part of an investigation, or by another law enforcement agency on a confidential basis, it may well jeopardise the provision of confidential information in the future, at least to the extent that the other law enforcement agency sees such disclosure or potential disclosure as a risk to its own investigations.

31. The Commission also relied upon a Confidential Affidavit affirmed by Mr O’Connor on the same date as the Open Affidavit. The Confidential Affidavit exhibits to it a Confidential Exhibit TOC-1.

32. Confidential Exhibit TOC-1 is a further lever arch folder of some 548 pages colour-coded. Relevantly for the present aspect of the proceedings, those documents highlighted in pink relate to public interest immunity. There are further documents, highlighted in orange, over which the Commission may claim public interest immunity, depending upon the outcome of discussions with other agencies.

33. I accept that, as earlier stated, the Commission frequently works with persons engaged in criminal activity and seeks from them information relating to serious criminal activity, or in relation to a current or future investigation of serious criminal activity. Indeed, the fundamental premise of the current proceedings is based upon such arrangements.

34. I also accept that reviewing the identities of such persons, particularly those who are currently serving prison sentences, or revealing information that would identify them, would seriously jeopardise such persons’ safety and would inhibit and/or discourage others from providing assistance in the future.

35. Further, I accept that it is crucial to an agency such as the Commission, in maintaining effective law enforcement, to have informers assured that there identity and status will be kept confidential and that the Commission will use its best efforts to maintain that confidentiality. Again, that is an aspect of the complaint made by the plaintiff in these proceedings as to the Commission’s conduct towards him, which is said to be in breach of the contract.

36. Information that might identify informers may will include the information that is provided. The information may point directly to one or two persons who would be the only persons with knowledge of that information and, together with other information (including a codename for the informer) could well be utilised by persons who are familiar with the source to identify the source. Lastly, it may be possible, with a variety of information provided — each piece of which may not, in and of itself, identify a human source — to piece together the information and, as a consequence, to identify the source.

37. I also accept that bank account details, the details of vehicles and the like would, if made public, allow the consequential discovery of persons who have utilised such bank accounts or cards attached thereto or driven such cars and utilised other equipment. Similar concerns exist in relation to certain surveillance devices and the kind of technology that may be utilised.

38. As earlier stated, a certain number of the documents are highlighted in orange. Those documents relate to relationships between the Commission and other law enforcement agencies, and the Commission has yet to determine whether public interest immunity will be claimed in relation to those documents.

39. The foregoing is not a criticism of the Commission. Even though significant time has elapsed, the determination of whether public interest immunity will be claimed in relation to those documents depends upon discussions that are being held or were being held between the Commission and those other agencies. The Court is prepared to reserve to the Commission the capacity to claim public interest immunity in relation to such documents and, in the meantime, to preserve the capacity to claim such immunity, to exempt the Commission for the production of those documents.

40. Two persons were inadvertently identified in discovery documents. Those persons are staff of the Commission. It is the Commission’s practice not to reveal the last names of human source handlers to human sources.

41. Apparently, during the course of discovery, two such staff members’ last names were disclosed. At the moment, those names are protected by Suppression Orders issued by the Court on 28 May 2021. At this point, the Court simply notes that proposition, but does not repeat the names or the details and makes it clear that publication of any such name would be a contempt of the Court orders with grave consequences.

42. Over and above the foregoing there are a number of documents that relate to unresolved investigations which have been identified and which, in accordance with the foregoing practice, have been highlighted in pink in the Confidential Exhibit TOC-1.

43. Because of the unusual nature of these proceedings, the Commission has, expressly, waived privilege, if any, in relation to documents that might otherwise have fallen within classes to which public interest immunity would apply. Those are documents that were, in the course of the assistance given by the plaintiff to the Commission, already provided to the plaintiff and/or are already known to the plaintiff; for example, information that was provided by the plaintiff to the Commission.

1. Nevertheless, documents containing information that is not otherwise known to the plaintiff and that, if disclosed, could place other persons at risk of harm, have been the subject of a claim for public interest immunity. So too, there has been a claim for public interest immunity over intelligence in relation to other persons. Such intelligence is one of the main functions of the Commission in investigating criminal activity.

Public Interest Immunity – Principles and Conclusions

45. The Court has, in the foregoing, summarised briefly the nature of the documents/or information over which the defendant claims public interest immunity. The Court has, also generally, dealt already with the interpretation of the provisions of s 80 of the Act.

46. The principles applicable to determining public interest immunity are uncontroversial and have been rehearsed many times. Most often, the principles are recited by reference to the judgment of the High Court of Australia in Alister v the Queen. ^[8] In Alister, the High Court approved the approach taken in Sankey v Whitlam ^[9] and said:

“Sankey v. Whitlam establishes that when one party to litigation seeks the production of documents, and objection is taken that it would be against the public interest to produce them, the court is required to consider two conflicting aspects of the public interest, namely whether harm would be done by the production of the documents, and whether the administration of justice would be frustrated or impaired if the documents were withheld, and to decide which of those aspects predominates. The final step in this process - the balancing exercise - can only be taken when it appears that both aspects of the public interest do require consideration - i.e., when it appears, on the one hand, that damage would be done to the public interest by producing the documents sought or documents of that class, and, on the other hand, that there are or are likely to be documents which contain material evidence. The court can then consider the nature of the injury which the nation or the public service would be likely to suffer, and the evidentiary value and importance of the documents in the particular litigation.” ^[10]

8. Alister v the Queen (1984) 154 CLR 404; [1984] HCA 85.

9. Sankey v Whitlam (1978) 142 CLR 1; [1978] HCA 43.

10. Alister, supra, at CLR 412 (Gibbs CJ).

47. The judgments in Sankey v Whitlam and in Alister were each dealing with public interest immunity in the context of criminal proceedings. In criminal proceedings, the public interest must be weighed against the possible effect on the liberty of an accused, which is to be dealt with by the Court and is, itself, an important aspect of public interest. Nevertheless, as the High Court pointed out in Alister, the Court in dealing with a claim for public interest immunity, is required to undertake a three-step process. Those three steps are:

1. An assessment of the harm that would flow, if any, from disclosure of the material to which objection has been taken and a determination that there would be such harm must be made. In those circumstances, the initial approach of the Court will be to incline against disclosure; ^[11]

2. After redacted disclosure (or nondisclosure of a particular document) the party that has sought the compulsory production of the document to which public interest immunity attaches, and who seeks access to such redacted material, would need to show that disclosure would be likely to assist materially the party’s case; ^[12]

3. Thirdly, if the court accepts that access to certain information that is otherwise subject to public interest immunity should be disclosed in the interests of the party seeking the information, the conflicting aspects of the public interest must again be weighed, and, to the extent available, a process adopted that would allow for the material to be viewed by the party, or the party’s legal representative.

   11. Commonwealth v Northern Land Council (1993) 176 CLR 604 at 617; [1993] HCA 24.

   12. Alister, supra, at CLR 412.

48. A claim for public interest immunity does not require an application. ^[13] The Court itself may be obliged to prevent disclosure of a document or information in a document that, on its face, appears to be injurious to the national interest.

    13. Sankey v Whitlam, supra.

49. I have read the Open Affidavit to which reference have been made. I have also read the Confidential Affidavit and Confidential Exhibit to which it refers.

50. The Confidential Affidavit does not add greatly to that which is in the Open Affidavit. The foregoing comment is not a criticism of the process that has been adopted.

51. On the contrary, the process that has been adopted is the process that generally applies. The comment, rather, is intended to disclose that the information in the Confidential Exhibit and Confidential Affidavit provides details of the general propositions asserted in the Open Affidavit. Frankly, those details would, in large measure, except as to the precise content of the documents, be general knowledge to a person involved in the criminal law.

52. Nevertheless, the Court has assessed the claim of the Commission and accepts that public interest immunity arises in relation to the matters to which the Confidential Affidavit refers.

53. As a consequence of that assessment, being step one in the process outlined above, the Commission is required to provide redacted copies of documents. The redaction would delete the names and any information which by itself or with other information would identify human sources, registered sources or informers, other than the plaintiff; information that would risk prejudice to past or present criminal investigations of the Commission; information that may prejudice interagency relationships, subject to the leave reserved to which the Court has already referred; information that could prejudice unresolved investigations; and information not known to the plaintiff that may place people at risk of harm.

54. In the first category are those documents in Confidential Exhibit TOC-1 at pages 2-39, inclusive; 41- 62, inclusive; 64-108, inclusive; 110-125, inclusive; 127-164, inclusive; 166-174, inclusive; 178-180, inclusive; 182-357, inclusive; 360; 362; 365; 367; 370; 372; 374 and 375; 377; 379 and 380; 382; 384 and 385; 387 and 388; 393-416, inclusive; 418 and 419; 421-464, inclusive; and, 466-548, inclusive.

55. In the category of prejudice, to criminal investigations, the documents that are not required to be produced, or required to be produced only as redacted, are the documents at pages 176; 338-344, inclusive; 347 and 348; 351-367, inclusive; 369; 370-374, inclusive; 376-379, inclusive; 381-384, inclusive; 386 and 387; 389; 393-411, inclusive; 413-431, inclusive; and, 433-463, inclusive.

56. Leave is reserved in relation to documents at pages 9; 10; 14-20, inclusive; 23; 24; 29; 38; 103; 105; 120 and 121; 132; 140; 145; and, 168. Leave is reserved until such time as the discussions with the agencies otherwise involved have concluded, at which time the Commission may renew the application for public interest immunity.

57. Those documents that involve unresolved investigations are the documents at pages 55 and 56; 87; 102, 103 and 104; 152; 165; and, 181. The documents that fall within the class of documents that would or may place people at risk of harm are documents in the Confidential Exhibit at pages 11 and 177.

58. Public interest immunity is granted in relation to all of foregoing documents to the extent necessary to redact any such information and, only to the extent necessary, to redact the entirety of the document.

59. It is necessary then to deal with the next step. Once the redacted documents are produced and access to them granted, albeit on a confidential basis (and bearing in mind the Suppression Orders and Non-Publication Orders that have already issued) the plaintiff is at liberty to submit, in relation to any such document, that the document is significant and/or material in the case to be presented by the plaintiff.

60. At that time, the Court will determine whether a process is available that would allow for the material in a less redacted form to be viewed and/or for a witness to be presented in a manner that would prevent the identification of the witness or the public publication of information that is otherwise against the national interest.

61. I reiterate that the substantive claim is a relatively simple one. I do not, by that, suggest that there are not real issues between the parties.

62. However, much of the information, which has been sought and to which objection has been taken, is relevant to the calculation of that which is said to be payable as a result of information provided by the plaintiff, or corroborative of the fact that information was provided, and it was of use. On the material of which the Court is aware, it seems that there is other evidence capable of proving those aspects and, as a consequence, it may be unnecessary for the third step to be undertaken. Alternatively, it may be that the Court will weigh the competing interests with that in mind.

63. For the foregoing reasons, the claim of public interest immunity is granted. The Court determines that the Commission is not required to produce the documents to which the Court has referred in other than a redacted form, deleting the information to which the Court has referred, albeit in general terms.

64. The Court makes the following orders

1. Pursuant to ss 130 and 131A of the Evidence Act 1995 (NSW), the defendant is excused from disclosing any documents or parts of documents that contain information referred to in these reasons for judgment;

2. Costs of the Motion will be costs in the cause.

**********

Endnotes

Amendments

29 July 2022 - Typographical error in para [54] and [55]

Decision last updated: 29 July 2022