SG v New South Wales Crime Commission (No 7)

[2022] NSWSC 1024

Supreme Court

New South Wales

Medium Neutral Citation:

SG v New South Wales Crime Commission (No 7) [2022] NSWSC 1024

Hearing dates:

On the papers, 19 July 2022

Decision date:

29 July 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 have been sought to be redacted and to which these reasons for judgment refer as being permitted to be produced with the redactions indicated in these reasons;

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 - no issue of principle discussed - judgment supplementary to earlier judgment of the Court - disclosure of redacted sections of documents granted.

Legislation Cited:

Crime Commission Act 2012 (NSW), s 80

Evidence Act 1995 (NSW), ss 130, 131A

Category:

Procedural rulings

Parties:

SG (Plaintiff)
New South Wales Crime Commission (Defendant)
New South Wales Crime Commission in relation to the Public Interest Immunity issue (Applicant)

Representation:

Counsel:
C O’Neill (Plaintiff)
M Hutchings (Defendant)
R Bhalla (Applicant)

Solicitors:
Laxon Lex Lawyers (Plaintiff)
Crown Solicitor’s Office (Defendant)
Crown Solicitor’s Office(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: On 14 June 2022, the Court as presently constituted, issued a judgment excusing the defendant from disclosing documents or parts of documents that contain information to which the reasons for judgment, then delivered, referred. [1] These reasons for decision are supplementary to the reasons for judgment in SG (No 6) (sometimes referred to herein as “the earlier judgment”).

   1. SG v New South Wales Crime Commission (No 6) [2022] NSWSC 779 (hereinafter “SG (No 6)”).

2. Typographical errors in relation to the page numbers to which the Court referred in the earlier judgment of SG (No 6) were raised with the Court and have been corrected.

3. An issue arose as to the treatment of pp 390-392 in TOC-1. The redacted passages in p 390 relate to the names of informers, and they may continue to be redacted in accordance with the objection to production.

4. In relation to pp 391 and 392, only the name of the informer may be redacted and the objection is upheld only in relation to that aspect. Thus, in relation to each page any dollar amount will not be able to be redacted, nor will the words "payment to informer" that may be included in the suggested redaction.

5. By further confidential affidavit of Timothy James O'Connor, dated 3 September 2021, the applicant seeks to produce — the documents annexed in Exhibit TOC-2 — which were omitted from the affidavit and the documents to which the Court referred in SG (No 6) — in a redacted form, on the basis of public interest immunity.

6. In short, a number of documents contained in Exhibit TOC-2 contain material in the same categories, and relate to the same material, as those documents to which the Court referred in SG (No 6). The Court adopts and applies, without alteration, the reasons for judgment and principles embodied in SG (No 6). It is unnecessary to repeat the principles applied by the Court in relation to the earlier documents.

7. The documents in Exhibit TOC-2 are colour-coded in the same way as the documents in Exhibit TOC-1, referred to in SG (No 6). The words or sections highlighted in pink are subject to a claim for public interest immunity. The tests for public interest immunity have been outlined and their application to the documents described in the earlier judgment.

8. I deal with the detail of the documents in TOC-2. The following comments relate to the redacted passages in TOC-2 and assume that the remainder of the document will be produced, but the document will be redacted as to those aspects that are highlighted in the confidential exhibit.

9. I allow the following redactions:

• on pp 2, 3, 4, 5;

• the first column on pp 6, 7;

• on pp 8, 9,10 (which is, effectively, the whole of the page), 11, 12, 13, 14;

• the second column in the table at p 15, and where sought to be redacted;

• pp 16, 17, 18, 19, 20, 21, 22;

• p 23 in relation only to the name of the informer in the first and only redacted dot point;

• p 24 in relation to the redaction only of the name of the informer in the same way as that referred to in p 23;

• the second column on p 25, the designation of a year in the third column on p 25, and any names contained in the fourth column of p 25;

• all the matters redacted p 26;

• all of the matters redacted at pp 27, 28, 29;

• the matters redacted, highlighted or contained within red lines on p 31;

• all of the redacted or marked entries on pp 32, 34, 35, 36;

• the first column only on pp 37, 38, 39, 40, 41, 42;

• all matters redacted on p 45 (p 44 is blank);

• all matters redacted on p 46, and all matters otherwise marked on p 46;

• all matters redacted on p 47; and,

• all matters redacted on p 48.

10. The foregoing is intended to deal with all of the objections to the supplementary list of documents in Exhibit TOC-2. The Court's intention was to ensure, in relation to those aspects in which names were deleted, that all matters that would identify the person there named have been redacted. If there are parts of the document that the Court has ruled should not be redacted, but, in the opinion of the objecting authority, would lead to the capacity to identify the named persons, then liberty is granted to raise such objection, notwithstanding the foregoing rulings.

11. There are still outstanding issues relating to the application of s 80 of the Crime Commission Act 2012 (NSW) (hereinafter "the Act") which the Court is yet to consider. This is the objection that takes account of the volumes of documents to which the Court referred in the earlier judgment. Those issues will be dealt with in a future judgment.

12. 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 have been sought to be redacted and to which these reasons for judgment refer as being permitted to be produced with the redactions indicated in these reasons;

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

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Endnote