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2
Court of Criminal Appeal 1 February 2002

R.v. FANDAKIS

[2002] NSWCCA 5

DrugsPublic order & justice offences
PUBLIC INTEREST IMMUNITY WHETHER QUESTION PROPERLY ALLOWED PUBLIC INTEREST IMMUNITY PUBLIC INTEREST IMMUNITY PUBLIC INTEREST IMMUNITY MANNER OF SUBSTANTIATING CLAIM

Citation: R v Fandakis [2002] NSWCCA 5
Court: NSW Court of Criminal Appeal
Date: 1 February 2002
Judge(s): Ipp AJA, Hidden J, Barr J (judgment of Barr J, with which Ipp AJA and Hidden J agreed)

Background

The respondent was charged with knowingly taking part in the cultivation of cannabis plants. During committal proceedings in the Local Court, it emerged that the investigating officer, Senior Constable Soras, had received information from a source whose identity had been deliberately obscured in photocopied notebook pages produced on subpoena. The obliterations made plain to defence counsel that the authorities were protecting the identity of a police informer.

Defence counsel cross-examined the officer about two consecutive notebook entries from 21 and 22 April 1998. The entries related to two individuals whose identifying details had been blacked out. Counsel asked the officer whether the person mentioned in the first entry was the same person as the one in the second.

Counsel representing the Commissioner of Police raised a claim of public interest immunity, relying on an affidavit and a confidential statement from a senior police officer. The magistrate rejected the claim, declined to adjourn overnight to allow further supporting material to be obtained, declined a short adjournment to allow the ruling to be reviewed by the Supreme Court, and required the question to be answered. The Attorney General appealed under s 5F of the Criminal Appeal Act 1912.

  • Whether the magistrate properly allowed the question to be asked and answered, given the risk that any answer could facilitate identification of a police informer.
  • Whether the magistrate properly refused an adjournment overnight to allow the Commissioner to put further supporting material before the court.
  • Whether the magistrate properly refused a short adjournment to allow the ruling to be reviewed by the Supreme Court.
  • What formalities are necessary to substantiate a claim for public interest immunity, including the requirements of s 130 of the Evidence Act 1995.

Decision

The Court of Criminal Appeal upheld the appeal on all grounds, finding that the magistrate had erred at each stage of the proceedings. The core problem was that the magistrate approached the question from a fundamental misconception about the evidence: she failed to appreciate that even a "yes" or "no" answer to the cross-examination question would meaningfully assist in identifying the informer, either by directly confirming identity or by narrowing the possibilities.

The Court found that the legal protection afforded to the identity of police informers is high. An answer to the question posed, regardless of its content, carried a real risk of enabling identification. That risk was sufficient to enliven the public interest immunity principle and to require the question to be excluded under s 130 of the Evidence Act 1995.

The refusals to adjourn compounded the error. The Court found the magistrate should have granted either an adjournment overnight to allow further material supporting the immunity claim to be obtained, or at minimum a short adjournment to allow the ruling to be tested in the Supreme Court. Requiring the evidence to continue in those circumstances was itself an error.

The Court also took the view that the magistrate's observations about the formalities required to substantiate an immunity claim were incorrect. Section 130 allows a court to inform itself "in any way it thinks fit" when deciding whether to direct exclusion, and the provision does not impose rigid formal requirements that evidence of this kind must meet before the claim can be entertained.

Orders Made

  • The appeal was allowed.
  • The orders appealed from were set aside.
  • In lieu, the Court ordered that the witness not be required in the proceedings below to answer whether the person identified in one notebook entry was the same as the person identified in the other.
  • The record of the Local Court was ordered to be struck of the answers given by the witness in response to that questioning.

Key Takeaways

  • The Court of Criminal Appeal confirmed that public interest immunity protecting the identity of police informers can extend to questions where even the form of the answer (whether "yes" or "no") would assist in identification.
  • Under s 130 of the Evidence Act 1995, a court may inform itself "in any way it thinks fit" when deciding whether to direct exclusion of evidence relating to matters of state, and the provision does not impose strict formal evidentiary requirements before a claim of immunity can be considered.
  • A magistrate's refusal to grant even a brief adjournment to allow an immunity claim to be substantiated by further material, or to allow a ruling to be reviewed, was itself held to constitute error where the subject matter engaged significant public interest in the protection of informer identity.
  • Where answers already given are not shown to have entered the public domain, an appellate court retains utility in ordering that the record be struck of those answers, even after the question has been answered.
  • Committal proceedings are not immune from the application of public interest immunity principles, and counsel appearing for the Commissioner of Police may raise such claims during cross-examination of a witness in those proceedings.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5F
- Evidence Act 1995 (NSW), s 130

Cases
- Attorney General (NSW) v Stuart (1994) 34 NSWLR 667
- Attorney General (NSW) v Smith (1996) 86 A Crim R 308
- Alister v The Queen (1984) 154 CLR 404
- Sankey v Whitlam (1978) 142 CLR 1
- Young v Quin (1985) 4 FCR 483
- Duncan v Cammell, Laird & Co Ltd [1942] AC 624
- Burmah Oil Co Ltd v Bank of England [1980] AC 1090
- Conway v Rimmer [1968] AC 910
- Attorney General (UK) v Bryant (1846) M&W