W v M - [2011] NSWSC 1634

Supreme Court

New South Wales

Medium Neutral Citation: W v M [2011] NSWSC 1634
Hearing dates: Monday, 19 December 2011
Decision date: 19 December 2011
Jurisdiction: Equity Division
Before: Brereton J
Decision:
It will not be a contravention of the non-publication orders for the Commissioner of Police to disclose to the Director of Public Prosecutions that the Police have obtained certain information and documents the subject of a bona fide claim of client-legal professional privilege and documents the subject of a non-publication order and to provide to the Director of Public Prosecutions a copy of these reasons for judgment.
It shall not be a contravention of the said orders for the Commissioner to produce in response to any subpoena for production that requires production of documents the subject of the present notice of motion, a copy of these reasons for judgment.

Catchwords: COURTS AND JUDGES - Orders made restraining defendant from publishing materials that were either defamatory or an abuse of process - non-publication orders also made - materials contain scurrilous and scandalous imputations about plaintiff - defendant murdered - Commissioner of Police applies to vary order to allow disclosure of materials to Director of Public Prosecutions and defendants in committal proceedings relating to murder of defendant - question whether material disclosable under (NSW) Director of Public Prosecutions Act 1986, s 15A - police under obligation to disclose to DPP information that might reasonably be expected to assist case for the prosecution or accused - materials point to a rational hypothesis consistent with innocence of accused - materials prima facie disclosable - balancing exercise required to assess whether documents ought be disclosed - need to balance interests of plaintiff and defendants - disclosure of material would jeopardise reputation and welfare of plaintiff - material not considered relevant to Crown case against accused - not for Crown to decide what lines of inquiry accused should pursue - accused may be deprived of defence if material not disclosed - administration of justice requires disclosure of such information - likely that rights of accused to a fair trial would trump rights to plaintiff - police permitted to disclose that have such material to DPP.
Legislation Cited: (NSW) Director of Public Prosecutions Act 1986, s 15A
Cases Cited: A v Hayden 156 CLR 532
Brown v Brooks (Supreme Court of New South Wales, McLelland J, 18 August 1988, unreported)
Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121
R v Keane [1994] 2 All ER 478
Regina v Richard Lipton [2011] NSWCCA 247
R v Spiteri (2004) 61 NSWLR 369
W v M & ors [2009] NSWSC 1084
Y and Z v W [2007] NSWCA 329; (2007) 70 NSWLR 377
Category: Principal judgment
Parties: W (plaintiff)
Estate of M (defendant)
Commissioner of Police
Representation: Counsel:
Mr D S Studdy SC (plaintiff)
Ms V A Evans (solicitor, defendant)
Ms M England (Commissioner of Police)
Solicitors:
Minter Ellison (plaintiff)
Uther Webster & Evans (defendant)
I Knight, Crown Solicitor (Commissioner of Police)

File Number(s):

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading W v M

Details

AGLC: W v M [2011] NSWSC 1634
Case: [2011] NSWSC 1634
Decision Date: 19 December 2011

CaseChat Overview and Summary

W, a former partner of M, obtained an order restraining M from publishing certain materials about her, which contained defamatory and scandalous allegations. The Commissioner of Police sought to vary the order to allow disclosure of these materials to the Director of Public Prosecutions and other defendants in committal proceedings relating to M's murder. The legal issues before the court were whether the materials were disclosable under the Director of Public Prosecutions Act 1986, s 15A, and whether the disclosure of the materials would jeopardise the reputation and welfare of the plaintiff.

The court held that the materials pointed to a rational hypothesis consistent with M's innocence and were prima facie disclosable. However, a balancing exercise was required to assess whether the documents ought to be disclosed. The court considered the interests of the plaintiff and the defendants and held that the disclosure of the material would jeopardise the reputation and welfare of the plaintiff. However, the material was not considered relevant to the Crown case against the accused, and it was not for the Crown to decide what lines of inquiry the accused should pursue. The court also noted that the accused may be deprived of a defence if the material was not disclosed. The administration of justice required disclosure of such information, and it was likely that the rights of the accused to a fair trial would trump the rights of the plaintiff. The Commissioner of Police was permitted to disclose that they had such material to the Director of Public Prosecutions.

This case highlights the importance of balancing the rights of individuals involved in legal proceedings, particularly when it comes to the disclosure of sensitive information. The court's decision demonstrates the need to carefully consider the implications of disclosing such information and to weigh the interests of all parties involved.

Orders