XYZ v State of NSW (No1)

[2017] NSWDC 111

District Court

New South Wales

Medium Neutral Citation:	XYZ v State of NSW (No1) [2017] NSWDC 111
Hearing dates:	8, 9, 10, 11, 15, 16, 18, 19, 22 and 23 May 2017
Date of orders:	23 May 2017
Decision date:	23 May 2017
Jurisdiction:	Civil
Before:	Judge Levy SC
Decision:	The question objected to at T469.44 – 470.4, and as identified at paragraph 5 of the Assistant Commissioner’s open affidavit sworn on 22 May 2017, and any related line of questioning is disallowed and excluded on the ground that if answered, it may disclose, or enable a person to ascertain, the existence or identity of a confidential source of information, contrary to the public interest.
Catchwords:	EVIDENCE – police witness – public interest immunity – confidential information which would prejudice the public interest if disclosed
Legislation Cited:	Court Suppression and Non-Publication Orders Act 2010, s 7 Evidence Act 1995, s 130
Cases Cited:	Alister v The Queen [1984] HCA 85; (1984) 154 CLR 404 Attorney General (NSW) v Lipton [2012] NSWCCA 156 Attorney General for NSW v Stuart (1994) 34 NSWLR 667 Cain v Glass (No 2) (1985) 3 NSWLR 230 D v National Society for the Prevention of Cruelty to Children [1978] AC 171 R v Fandakis [2002] NSWCCA 5 Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1 Young v Quin [1985] FCA 18; (1985) 59 ALR 225
Category:	Consequential orders (other than Costs)
Parties:	XYZ (Plaintiff) State of New South Wales (Defendant)
Representation:	Counsel: Ms L Evans (Plaintiff) Mr A Williams (Defendant) Mr R Lee (For Commissioner of Police/Intervenor, on 19, 22 & 23 May 2017)   Solicitors: James Patrick Pope (Plaintiff) Crown Solicitor (Defendant) Crown Solicitor (For Commissioner of Police)
File Number(s):	2013/336614
Publication restriction:	Non-publication order

Judgment

Non-publication order

1. In these proceedings, a non-publication order has been made pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010, which has the effect of prohibiting the publication or the disclosure of any information tending to reveal the identity or otherwise concerning the plaintiff and members of his family, including his estranged family, until any further order of the Court, for the reasons given on 9 May 2017, following which, the plaintiff was assigned the litigation pseudonym “XYZ”: T123.42.

Application by Commissioner of Police as Intervenor

2. This is an application by the Commissioner of Police made pursuant to s 130 of the Evidence Act 1995 seeking to intervene on the eighth, ninth and tenth days of part-heard proceedings between the plaintiff, “XYZ” and the State of New South Wales.

3. The claim by the plaintiff is that he was the victim of intentional torts allegedly committed by police officers and an officer of the then Department of Community Services. For the purposes of this application, it is not necessary to further describe here, the remaining subject matter of the proceedings.

4. The application arises because, on 19 May 2017, which was the eighth day of the hearing, a police witness sought to object to answering a question asked of him in cross-examination, which if answered, would reveal information about criminal investigations concerning certain persons.

5. In those circumstances, the witness was stood down from further cross-examination pending the making of the present application, which was then flagged. The application was formally made orally on the afternoon of the ninth day of the hearing on 22 May 2017, by counsel for the Commissioner of Police, and continued today, the tenth day of the hearing, on 23 May 2017.

6. The intervenor’s application for public interest immunity was made citing the public interest, whereby it was claimed by the intervenor that it would be contrary to the public interest to either confirm or to deny that a particular person was the source of certain information given to police officers involved in the investigation of certain crimes. By their nature, those descriptions must necessarily remain elliptical.

Evidence

7. The intervenor relied on an open affidavit sworn on 22 May 2017 by an Assistant Commissioner of Police. That affidavit was made available to both parties. The principles of open justice require that the grounds of the present application be stated, but subject to appropriate redactions being made in conformity with an order already made in the proceedings pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010. The relevant portion of that affidavit stated the following matters:

“8.   On behalf of the Commissioner, I respectfully ask the Court to excuse [Rank of police officer] XXXX (or any other witness) from confirming or denying whether YYYY provided assistance to the NSW Police Force as a source for the following reasons:

a.   To confirm the existence of any such assistance would confirm the identity of YYYY as a source in relation to a particular matter. Alternatively, to deny the existence of any such assistance would deny that YYYY was a source in relation to other matters.

b.   It would be contrary to the public interest for it to be denied or tended to be denied that a person is or was a source. To do so would have the effect that in other cases, when no such denial was issued, the Commissioner's claim of public interest immunity would be tantamount to a confirmation.

[Heading omitted]

9.   The use of sources/informers is an important part of police methodology. An important part of effective policing is the receipt, on a confidential basis, of information from the public. If such persons are placed at risk (and the mere suggestion of their status as informers or possible informers places them at risk) then the supply of such information and assistance would diminish or cease. This would undermine the ability of police to investigate criminal activity.

10.   The use of confidential sources is a highly effective tool in the investigation and disruption of criminal activity and for the gathering of evidence. If the use of sources were compromised by their identities becoming known, and police could no longer rely on using them, it would hamper the ability of police to prevent and investigate crime.

11.   The use of sources is an important aspect of many police investigations, especially investigations of serious criminal activity. If police were not able to utilise confidential sources, it would result in there being:

a.   numerous serious crimes in which perpetrator/s could not be identified or could not be prosecuted due to insufficient evidence; and/or

b.   numerous serious criminal activities that would go undisrupted and those involved who would not be identified or could not be prosecuted due to insufficient evidence.

12.   It is essential that sources be assured that everything legitimately possible is done to ensure that their true identity and status as sources is kept confidential or, if that is not possible for some reason, then any exposure must be kept to an absolute minimum.

13.   As sources often give evidence that can secure the conviction of an accused, their assistance to police may place them at risk of harm if an accused seeks revenge or retribution against them. It follows that the disclosure of the identity of sources or their status as such could put at risk their safety and the safety of people associated with them, including friends, family and other associates.

14.   The disclosure, or wider dissemination, of the identity, status of any source may facilitate efforts directed at retribution (whether against them personally or against their family, friends or associates) and efforts directed at preventing sources from giving evidence. This is because such disclosure, or greater dissemination, could enable the sources to be located and could help in the commissioning of other persons to carry out acts of retribution or acts directed at preventing the sources from further assisting police.

15.   If the identities of sources are not protected, police will have great difficulty in recruiting sources to provide intelligence in other investigations. Future potential informants will be less likely to volunteer information and assistance to police for fear that their identities and/or their association with an undercover operative (for example, as someone who arranged an introduction between the criminal and the undercover operative) may be disclosed to criminal defendants or their associates. This would lead to fears for their personal safety, on the basis that police could not guarantee the security of such information.

16.   Further details are set out in the confidential affidavit sworn by me today in these proceedings, and placed into an envelope marked "Confidential Exhibit MF - 1".”

8. In addition to the above affidavit, the same Assistant Commissioner of Police swore a second and confidential affidavit, which I have read, and which has not been shown to either the plaintiff or his legal representatives, or the representatives of the defendant in the proceedings. I shall shortly refer to the content of that affidavit in general terms. After reading and considering the content of that affidavit, I have initialled and dated it, and have caused it to be placed in a sealed envelope marked “Not to be opened except by order of a Judge of this Court, or a Judge of the Supreme Court, or a Judge of the Court of Appeal”.

Legislation

9. Section 130 of the Evidence Act 1995 relevantly provides:

130 Exclusion of evidence of matters of state

(1) If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence.

(2) The court may give such a direction either on its own initiative or on the application of any person (whether or not the person is a party).

(3) In deciding whether to give such a direction, the court may inform itself in any way it thinks fit.

(4) Without limiting the circumstances in which information or a document may be taken for the purposes of subsection (1) to relate to matters of state, the information or document is taken for the purposes of that subsection to relate to matters of state if adducing it as evidence would:

(a) prejudice the security, defence or international relations of Australia, or

(b) damage relations between the Commonwealth and a State or between 2 or more States, or

(c) prejudice the prevention, investigation or prosecution of an offence, or

(d) prejudice the prevention or investigation of, or the conduct of proceedings for recovery of civil penalties brought with respect to, other contraventions of the law, or

(e) disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State, or

(f) prejudice the proper functioning of the government of the Commonwealth or a State.

(5) Without limiting the matters that the court may take into account for the purposes of subsection (1), it is to take into account the following matters:

(a) the importance of the information or the document in the proceeding,

(b) if the proceeding is a criminal proceeding-whether the party seeking to adduce evidence of the information or document is a defendant or the prosecutor,

(c) the nature of the offence, cause of action or defence to which the information or document relates, and the nature of the subject matter of the proceeding,

(d) the likely effect of adducing evidence of the information or document, and the means available to limit its publication,

(e) whether the substance of the information or document has already been published,

(f) if the proceeding is a criminal proceeding and the party seeking to adduce evidence of the information or document is a defendant-whether the direction is to be made subject to the condition that the prosecution be stayed.

(6) A reference in this section to a State includes a reference to a Territory.”

Principles to be applied in claims for public interest immunity

10. Public interest immunity does not arise inter partes: Young v Quin [1985] FCA 18; (1985) 59 ALR 225, at 227. It is an immunity that is different in character from privilege, and an interested party may raise it in proceedings such as the present case: Attorney General for NSW v Stuart (1994) 34 NSWLR 667, at 690C. When a claim of public interest immunity is made, it is the duty of the court to ensure that the public interest is protected: Attorney General for NSW v Stuart, at 668; R v Fandakis [2002] NSWCCA 5, at [39].

11. In undertaking the required balancing exercise, the court must balance the conflicting private and public interest in the manner described in Alister v The Queen [1984] HCA 85; (1984) 154 CLR 404, at 442, as follows:

“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 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 the 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.”

12. There is a significant public interest in the administration of justice in ensuring police can function effectively by receiving the flow of intelligence about criminal activity. A failure to protect the names of informers from being divulged would have the general effect of limiting that flow of intelligence information: D v National Society for the Prevention of Cruelty to Children [1978] AC 171, at 232; Cain v Glass (No 2) (1985) 3 NSWLR 230, at 233 – 234.

13. In that regard, non-police informers who provide sensitive information to law enforcement agencies must be able to provide such information in the secure knowledge that their identities will be protected from disclosure to others who might be minded to take reactive measures: Attorney General (NSW) v Lipton [2012] NSWCCA 156, at [37].

14. Exceptions to such protections from disclosure apply only in cases where the divulging of protected information as to the identity of informers is required to establish the innocence of an accused person: Attorney General for NSW v Stuart, at 674; Sankey v Whitlam [1978] HCA 43, (1978) 142 CLR 1, at p 42. The law places a high value on the protection of informers: Attorney General (NSW) v Lipton [2012] NSWCCA 156, at [37]. The exception is not engaged in the present case.

Consideration

15. I must state my conclusion that the content of the confidential affidavit I have read reveals that the question and the line of cross-examination identified at T469.44 – 470.4, which was objected to by the witness when giving evidence at that point, if answered, would require the identification of a registered police informant who is involved in the provision of relevant information about several persons of interest to the NSW Police Force. That information relates to the illegal trading of the drug methyl amphetamine, including an investigation in relation to a known and major supplier of commercial quantities of that drug. Clearly, the subject matter so raised is sensitive insofar as the public interest is concerned.

16. The confidential affidavit by the Assistant Commissioner has identified an evidentiary basis for real fears held for the safety of a person, and the family of a person, whose identity would otherwise be disclosed if the question objected to, was answered.

17. In those circumstances, having regard to the principles identified in paragraphs [10] to [14] above, on the balance of probabilities, I am satisfied that the question objected to should be disallowed as being contrary to the public interest of protecting the identity of confidential sources of information provided to police as part of the investigation of significant criminal activity that is both illegal and seriously injurious to the community generally.

18. In the circumstances, I consider that the required balancing exercise overwhelmingly favours the public interest of protecting important sources of information given to police. This is so notwithstanding that the plaintiff’s private interest may possibly be adversely affected by such an order.

19. I emphasise the use of the word “may” in this context because it is by no means certain that the disclosure sought by the question, if answered, or the chain of answers which might follow, would necessarily assist the plaintiff’s case.

20. The anticipated answer to the question could only be relevant to the issue of whether the police officer who arrested the plaintiff had the requisite suspicion on reasonable grounds justifying the arrest of the plaintiff, which is an issue central to these proceedings: s 99 Law Enforcement (Powers and Responsibilities) Act 2002.

21. In my assessment, undertaking the required balancing exercise, the subject matter objected to and sought to be protected by the intervenor is not relevant to that issue. It is therefore unlikely that the administration of justice would be materially frustrated by the making of the order sought. The plaintiff’s legal representatives would not be precluded from further testing or seeking to undermine the arresting police officer’s claim of justification for the arrest of the plaintiff. I therefore conclude that the intervenor has satisfied the several requirements of s 130(1); s 130(2) and s 130(4)(c) – (f) of the Evidence Act 1995.

22. The plaintiff should readily understand the rationale behind this decision because, in the same public interest, and in his own best interests, he has already been the beneficiary of a protective order made pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010, which has the effect of suppressing and prohibiting the publication of the details of his identity and that of his family because otherwise, his own safety and their safety, would be at risk.

Order

23. The question objected to at T469.44 – 470.4, and as identified at paragraph 5 of the Assistant Commissioner’s open affidavit sworn on 22 May 2017, and any related line of questioning is disallowed and excluded on the ground that if answered, it may disclose, or enable a person to ascertain, the existence or identity of a confidential source of information, contrary to the public interest.

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Decision last updated: 23 May 2017