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Court of Criminal Appeal 7 July 1999

R v ABDULLAH & Ors

[1999] NSWCCA 188

DrugsPublic order & justice offences
CRIMINAL LAW PUBLIC INTEREST IMMUNITY CONFIDENTIAL POLICE INFORMER TEST TO BE APPLIED CRIMINAL LAW PUBLIC INTEREST IMMUNITY

Citation: R v Abdullah & Ors [1999] NSWCCA 188
Court: New South Wales Court of Criminal Appeal
Date: 7 July 1999
Judge(s): Spigelman CJ, Grove J, Barr J

Background

The Commissioner of the Australian Federal Police applied for leave to appeal against an interlocutory ruling made by a District Court judge during a drug supply trial. The two accused, referred to here as the first accused and the second accused, faced charges of supplying illegal heroin. During the investigation, police had used a confidential informer and an associated civilian contact known throughout proceedings only as "Johnny."

Before the trial commenced, a Basha inquiry was held. A Basha inquiry is a pre-trial procedure that allows defence counsel to cross-examine proposed Crown witnesses in the absence of the jury. Counsel for the first accused indicated he intended to cross-examine "Johnny" about his relationship with a named third party, whom counsel suspected was the confidential informer. The Commissioner's solicitor, who had been subpoenaed to produce documents, raised a claim of public interest immunity to protect the informer's identity and any information that could reveal it.

The District Court judge rejected the immunity claim, finding it would be "manifestly unjust" to prevent cross-examination of "Johnny" about his relationship with the suspected informer. The Commissioner sought leave to appeal that ruling to the Court of Criminal Appeal under s 5F of the Criminal Appeal Act.

  • What is the correct legal test for upholding or refusing a claim of public interest immunity in relation to a confidential police informer?
  • Did the defence establish a sufficient basis to displace the immunity, such that the trial judge's refusal of the claim was warranted?
  • Whether the Commissioner of the Australian Federal Police had standing to bring the application in his own name under s 5F of the Criminal Appeal Act.

Decision

The Court confirmed that the identity of a police informer has been protected from disclosure as a matter of public policy since at least Marks v Beyfus (1890), and that this protection extends to any material from which a "shrewd idea" of the informer's identity might be conveyed. The immunity can only be displaced where the accused demonstrates that disclosure is necessary to establish innocence. The burden rests on the accused to show that the desired evidence would tend to prove innocence, not merely that it might be relevant or worth exploring.

Barr J, delivering the leading judgment, concluded that defence counsel had not met that burden. The cross-examination sought was characterised as fishing: counsel wanted to explore whether the suspected third party was a convicted drug dealer and whether he had a motive to implicate the first accused, but nothing in those submissions demonstrated that any answer would tend to prove the accused's innocence. Mere speculation about a possible motive was insufficient to justify overriding the immunity.

On that basis, the Court held that the trial judge ought to have upheld the public interest immunity claim. The ruling below was set aside.

Spigelman CJ added a brief observation about standing. Section 5F(2) confers appeal rights on the Attorney General and the Director of Public Prosecutions; s 5F(3) extends standing by leave to any other party to the proceedings. The Commissioner had brought the application in his own name, rather than through the Attorney General as had occurred in a previous comparable case. Because no point was taken on standing in the present proceedings, the Court expressly declined to decide whether the Commissioner had standing to sue in his own name under s 5F, leaving that question open.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.

Key Takeaways

  • Public interest immunity protecting the identity of a confidential police informer is a well-established doctrine that covers any material capable of conveying a "shrewd idea" of the informer's identity, not only direct identification.
  • To displace the immunity, an accused must demonstrate to the court that the evidence sought would tend to prove innocence. Speculative or exploratory cross-examination aimed at uncovering possible motives does not satisfy that test.
  • The Court of Criminal Appeal confirmed that the burden of displacing the immunity rests on the party seeking disclosure, and a trial judge is not entitled to refuse a properly made claim simply on grounds of general fairness without a sufficient evidential foundation.
  • No finding was made on whether the Commissioner of the Australian Federal Police has standing in his own right under s 5F(3) of the Criminal Appeal Act to bring an interlocutory appeal of this kind, as the issue was not contested by any party.
  • In dismissing the trial judge's reasoning, the Court of Criminal Appeal emphasised that a Basha inquiry does not lower the threshold for overriding public interest immunity; the same principles apply regardless of the procedural context in which disclosure is sought.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act, s 5F

Cases
- Marks v Beyfus (1890) 25 QBD 494
- Duncan v Cammell Laird and Company Limited [1942] AC 624
- Rogers v Home Secretary [1973] AC 388
- D v National Society for the Prevention of Cruelty to Children [1978] AC 171
- Sankey v Whitlam (1978) 142 CLR 1
- Cain v Glass (No 2) (1985) 3 NSWLR 230
- Young v Quin (1985) 4 FCR 483
- Signorotto v Nicholson [1982] VR 413
- Attorney General for New South Wales v Stuart (1994) 34 NSWLR 667
- R v Stig, NSWCCA, 17 October 1996 (unreported)
- R v Keeling, NSWCCA, 5 September 1996 (unreported)