XZ v The Queen - [2000] FCA 1143

FEDERAL COURT OF AUSTRALIA
XZ v The Queen [2000] FCA 1143
CRIMINAL LAW – police informer – disclosure of assistance to police endangering safety of informer and family – common law rule against disclosure of informer’s identity based on public policy – whether order for non-publication of informer’s identity and related evidence warranted – whether publication likely to prejudice administration of justice.
Evidence Act 1971 (ACT), s 83(1)
Drugs of Dependence Act 1989 (ACT), s 164(2)(c)
Magistrates Court Act 1930 (ACT), s 90A
Crimes Act 1900 (ACT), s 429A(1)(h)
Marks v Beyfus (1890) 25 QBD 494 cited
Sankey v Whitlam (1978) 142 CLR 1 cited
Signorotto v Nicholson [1982] VR 413 cited
Cain v Glass (No 2) [1985] 3 NSWLR 230 cited
R v Abdullah [1999] NSWCCA 188 cited
R v Lewes Justices; ex parte Secretary of State for the Home Department [1973] AC 388 cited
D v National Society for the Prevention of Cruelty to Children [1978] AC 171 cited
R v Lennon (1985) 38 SASR 356 cited
XZ v THE QUEEN
A 25 of 2000
BURCHETT, HIGGINS & KENNY JJ
CANBERRA
15 AUGUST 2000

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

A 25 OF 2000

BETWEEN:

XZ
Applicant

AND:

THE QUEEN
Respondent

JUDGES:

BURCHETT, HIGGINS & KENNY JJ

DATE OF ORDER:

15 AUGUST 2000

WHERE MADE:

CANBERRA

THE COURT ORDERS THAT:
1.   The application for leave to appeal be granted.
2.   The appeal be allowed.
3.   The publication of evidence
(a)identifying or tending to identify the applicant/appellant as being prepared to assist the Australian Federal Police by providing information concerning any person involved in drug trafficking; and
(b)the identity of any such person

be forbidden.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

A 25 OF 2000

BETWEEN:

XZ
Applicant

AND:

THE QUEEN
Respondent

JUDGES:

BURCHETT, HIGGINS & KENNY JJ

DATE:

15 AUGUST 2000

PLACE:

CANBERRA

REASONS FOR JUDGMENT
THE COURT:

The applicant seeks leave to appeal from a decision made by a judge of the Supreme Court of the Australian Capital Territory on 6 April 2000 declining to make an order pursuant to s 83(1) of the Evidence Act 1971 (ACT) forbidding the publication of specified parts of the applicant’s evidence. The Court has heard argument upon this application and upon the proposed appeal.
The applicant pleaded guilty in the Magistrates Court at Canberra to possessing a traffickable quantity of a prohibited substance (being heroin) for the purpose of sale contrary to s 164(2)(c) of the Drugs of Dependence Act 1989 (ACT). He was committed for sentence to the Supreme Court pursuant to s 90A of the Magistrates Court Act 1930 (ACT). On 6 April 2000, he appeared before the learned sentencing judge, adhered to his plea and sought an adjournment to permit him to provide information to the police prior to sentence. Presumably, this was because, pursuant to s 429A(1)(h) of the

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 XZ v The Queen

Details

AGLC: XZ v The Queen [2000] FCA 1143
Case: [2000] FCA 1143
Decision Date: 15 AUGUST 2000

CaseChat Overview and Summary

The matter before the court was an appeal against a decision to allow evidence of the appellant’s willingness to provide information to the Australian Federal Police about persons involved in drug trafficking. The appellant sought to appeal the decision of a single judge of the Federal Court of Australia who had refused to quash an order for the publication of certain evidence. The appellant argued that such publication would put their life at risk, particularly given the nature of the evidence which tended to identify them as a person willing to assist law enforcement agencies.

The legal issues before the court were whether the single judge had erred in law by not quashing the order for the publication of evidence that tended to identify the appellant as a person willing to provide information to the Australian Federal Police about persons involved in drug trafficking. The court needed to determine whether such evidence was relevant and whether it was necessary to publish the evidence to ensure the administration of justice. The appellant argued that the evidence was irrelevant and that its publication would put their life at risk, which outweighed the need to publish the evidence for the administration of justice.

The court found that the single judge had erred in law in not quashing the order for the publication of evidence. The court held that the evidence was not relevant and that the appellant had demonstrated a real risk to their life if the evidence was published. The court found that the risk to the appellant’s life was such that it outweighed the need to publish the evidence to ensure the administration of justice. The court also found that the appellant had made out a real risk to their life, which was sufficient to warrant the quashing of the order for the publication of evidence. The court granted the application for leave to appeal, allowed the appeal, and forbade the publication of evidence identifying or tending to identify the appellant as being prepared to assist the Australian Federal Police by providing information concerning any person involved in drug trafficking, as well as the identity of any such person.

Orders

Orders of the court

1. The application for leave to appeal be granted.

2. The appeal be allowed.

3. The publication of evidence

(a) identifying or tending to identify the applicant/appellant as being prepared to assist the Australian Federal Police by providing information concerning any person involved in drug trafficking; and

(b) the identity of any such person

be forbidden.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A 25 OF 2000

BETWEEN:	XZ Applicant
AND:	THE QUEEN Respondent
JUDGES:	BURCHETT, HIGGINS & KENNY JJ
DATE OF ORDER:	15 AUGUST 2000
WHERE MADE:	CANBERRA

JUDGES:	BURCHETT, HIGGINS & KENNY JJ
DATE:	15 AUGUST 2000
PLACE:	CANBERRA