Re: MICHAEL JEROME YOUNG, THE SPECIAL MINISTER OF STATE And: ERIS ADRIAN QUIN; TINA WONG; DAVID YOUNG TE CHOW; CHAROEN RIRASATIK and DIRECTOR OF PUBLIC PROSECUTIONS No. G376 of 1984 Evidence 4 FCR 483
COURT
IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION Bowen C.J.(1), Sheppard(2) and Beaumont(3) JJ.
CATCHWORDS
Administrative Law - Judicial review - committal proceedings in respect of alleged drug-related offences - attempt by counsel for accused to cross-examine prosecution police witness as to circumstances surrounding alleged offences - claim that such cross-examination would not be in public interest because answers might reveal police methods of operation to the prejudice of future police activities and of relationships with overseas police forces - decision by magistrate to allow cross-examination of deponent to affidavit in support of claim for immunity - desirability of intervention in committal proceedings - analysis of competing interests of public interest and proof of innocence - whether proposed cross-examination relevant to defence to charges.
D. v. National Society for the Prevention of Cruelty to Children (1978) A.C. 171 - con.
Evidence - Matters excluded from proof - Grounds of public policy - Oral evidence tending to reveal police methods of operation - Oral evidence tending to prejudice police relations with overseas police forces - Affidavit of police inspector in support of claim for immunity - Whether court should permit cross-examination of deponent.
HEADNOTE
Held: (1) That when objection to the questioning of a witness in a criminal trial is taken on grounds relating to the protection of the public interest, and the objection is supported by an affidavit of a person with the appropriate authority, cross-examination of the deponent should ordinarily not be permitted if it would disclose matters covered by the objection.
(2) That in deciding whether cross-examination should be permitted, the court should take into account the possibility of the emergence of evidence going to the guilt or innocence of the accused, but a cross-examination in the nature of a "fishing" expedition should not be permitted.
(3) (Per Beaumont J) When the cross-examination proposed is directed at matters which are essentially collateral to the charges brought, a claim of public interest immunity should be displaced only if the cross-examiner can demonstrate a real likelihood that his cross-examination will materially assist the defence.
Sir Maurice Byers QC and J Sackar, for the appellant.
R J Burbidge QC and R A Baker, for the second respondent.
P W Neil and 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.
In the matter of Young v Quin, the appeal was brought before the court concerning the committal proceedings involving the accused, Young, in relation to alleged drug-related offences. The crux of the dispute was the magistrate's decision to allow the cross-examination of a prosecution police witness, Detective Chief Inspector J.F. Wheatley, despite the claim by counsel for the accused that such cross-examination would reveal police methods and operations, potentially prejudicing future police activities and relationships with overseas police forces. The court was required to weigh the public interest in maintaining confidentiality of police operations against the accused's right to a fair trial, including the right to cross-examine witnesses.
The legal issues before the court involved the application of judicial review principles in committal proceedings, the relevance of the proposed cross-examination to the defence, and the extent to which the public interest in maintaining police operational secrecy could override the accused's rights. The court had to determine whether the cross-examination was pertinent to proving the innocence of the accused and if it was in the public interest to disclose police methods. It was also necessary to assess the balance between the accused's right to a fair trial and the potential harm to public interest if police methods were revealed.
The court found that the magistrate's decision to allow cross-examination was not justified in the context of the proceedings. The court held that the interests of the public in maintaining the confidentiality of police methods outweighed the need for the accused to cross-examine the witness to establish innocence. The court concluded that the proposed cross-examination was not relevant to the defence and that allowing it would not contribute to the fair administration of justice. The appeal was allowed, and the magistrate's orders were set aside, with the decision that the cross-examination should not proceed. The second and fourth respondents were ordered to pay the costs of the appellant's appeal and the preceding proceedings. The cross-appeal was dismissed, with no order for costs.
Orders
Orders of the court
Appeal allowed.
Set aside the orders made herein by Wilcox, J. on 12 October 1984.
In lieu thereof declare that the first respondent is bound to disallow cross-examination of Detective Chief Inspector J.F. Wheatley on the affidavit sworn by him on 7 August 1984.
Order that the second and fourth respondents pay the costs of the appellant of this appeal and of the proceedings before Wilcox, J.. Make no order for the costs of the first, third and fifth respondents.
Order that the cross-appeal be dismissed. Make no order as to the costs of the cross-appeal.