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Court of Criminal Appeal 16 November 2001

Attorney General v Kaddour & Turkmani

[2001] NSWCCA 456

Public order & justice offences

Citation: Attorney General v Kaddour & Turkmani [2001] NSWCCA 456
Court: NSW Court of Criminal Appeal
Date: 16 November 2001
Judge(s): Spigelman CJ, Sully J, Adams J

Background

The two respondents were standing trial before the District Court, without a jury, on a charge of soliciting the murder of a tow-truck driver, Albert Brikha. The Crown alleged that the respondents had solicited a third party to carry out the killing. The key Crown witness had pleaded guilty to the murder and was giving direct evidence that the respondents had engaged him to commit it.

During the trial, two police informers were to be called as witnesses. When cross-examining a detective, defence counsel asked questions that, if answered, would tend to identify those informers. The Commissioner of Police applied to the trial judge to disallow that line of questioning on grounds of public interest immunity, supported by affidavits from two Deputy Commissioners and confidential statements provided to the court in a sealed form.

The trial judge rejected the public interest immunity claim. The Attorney General brought a Crown appeal as of right under section 5F of the Criminal Appeal Act 1912 (NSW), challenging that interlocutory ruling.

  • Whether section 130 of the Evidence Act 1995 (NSW) applied to the immunity claims made by the Commissioner of Police.
  • Whether the information at issue fell within the definition of "matters of state" under section 130(4)(e), specifically as information whose disclosure could reveal the existence or identity of a confidential police source.
  • Whether the trial judge applied the correct legal test in rejecting the public interest immunity claim.

Decision

Sully J (with whom Spigelman CJ and Adams J agreed) held that the information in question clearly fell within section 130(4)(e) of the Evidence Act 1995 (NSW). That provision covers information whose disclosure would reveal or allow a person to ascertain the existence or identity of a confidential source of information relating to the enforcement of a law. Protecting the identities of the informers from a process of elimination through cross-examination fell squarely within that category.

Because section 130 applied, the trial judge was required to apply the specific statutory test in section 130(1): whether the public interest in admitting the information was outweighed by the public interest in preserving secrecy or confidentiality. That balancing exercise was to be informed by the considerations in section 130(5) and the principles set out by the Court of Criminal Appeal in Arthur Stanley Smith (1996) 86 A Crim R 308. The trial judge was also entitled, under section 130(3), to inform himself in any way he thought fit, including by reading the confidential statements without disclosing their contents to anyone.

Sully J found that the trial judge's reasoning was entirely misconceived. Rather than conducting the precise statutory balance required by section 130(1), the trial judge focused on whether the defence had a legitimate or reasonable forensic purpose, and whether there was "a real prospect of forensic fruitfulness" in pursuing the cross-examination. That was not the correct inquiry. The published reasons disclosed no proper engagement with the competing public interests that the statute required to be weighed.

Orders Made

  • Appeal allowed.
  • The interlocutory judgment and orders rejecting the public interest immunity claim were vacated.
  • The three confidential statements were ordered to be sealed in an envelope, marked confidential, and kept on the court file, not to be opened without a prior order of a judge of the Court.

Key Takeaways

  • Under section 130(4)(e) of the Evidence Act 1995 (NSW), information is treated as relating to "matters of state" where adducing it would disclose, or enable a person to ascertain, the existence or identity of a confidential police source. Cross-examination designed to identify informers through a process of elimination falls within this category.
  • Where section 130 applies, the sole proper test is the statutory balancing exercise in section 130(1): the court must weigh the public interest in admission against the public interest in preserving secrecy or confidentiality, having regard to the matters in section 130(5) and relevant case law.
  • A trial court's inquiry into the accused's "forensic fruitfulness" or legitimate forensic purpose in seeking the evidence is not a substitute for, and does not satisfy, the prescribed statutory balance under section 130(1).
  • The District Court's entitlement under section 130(3) to inform itself in any way it thinks fit includes reading confidential materials without disclosing their contents to any party.
  • In allowing the appeal, the Court of Criminal Appeal confirmed that an interlocutory ruling on public interest immunity is amenable to Crown appeal under section 5F of the Criminal Appeal Act 1912 (NSW).

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F
- Evidence Act 1995 (NSW), s 130 (ss 1, 3, 4, 5)

Cases:
- Arthur Stanley Smith (1996) 86 A Crim R 308 (Gleeson CJ, Clarke and Sheller JJA)