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Supreme Court 13 September 2002

Nye v State of New South Wales & ors

[2002] NSWSC 1266

Public order & justice offences
EVIDENCE SUBPOENA FOR PRODUCTION OF DOCUMENTS PUBLIC INTEREST IMMUNITY INFORMER WITNESS OR POTENTIAL WITNESS INFORMANTS REGISTER

Citation: Nye v State of New South Wales & ors [2002] NSWSC 1266
Court: Supreme Court of New South Wales (Common Law Division)
Date: 13 September 2002
Judge(s): O'Keefe J

Background

The plaintiff brought civil proceedings arising from the murder of a man named Roy Thurgar. In the course of those proceedings, a subpoena for production of documents and notices to produce were served on the defendants, which included the State of New South Wales and the Director of Public Prosecutions.

The Crown and the Director of Public Prosecutions objected to producing a significant number of the documents sought. The objections were grounded in two distinct legal bases: public interest immunity and legal professional privilege.

O'Keefe J examined the documents in question (including by reference to a confidential affidavit from a Senior Assistant Commissioner of Police) and ruled on each category of document in turn.

  • Whether documents identifying police informants, witnesses, or the subjects of ongoing criminal investigations were protected from disclosure on public interest immunity grounds
  • Whether operational orders relating to completed investigations, and materials revealing the administrative arrangements of the National Crime Authority, were similarly protected
  • Whether certain documents held by the Director of Public Prosecutions were protected by legal professional privilege on the basis they were created for the dominant purpose of legal advice
  • Whether any of those legally privileged documents fell within the crime-fraud exception to legal professional privilege

Decision

Public Interest Immunity: Informers and Witnesses

O'Keefe J confirmed that the protection of police informers' identities is a near-absolute manifestation of the public interest immunity doctrine. Drawing on Marks v Beyfus (1890) and D v National Society for the Prevention of Cruelty to Children [1978], his Honour held that the court does not balance the public interest in disclosure against the public interest in protecting the flow of criminal intelligence. The identity of informers is not admissible in civil proceedings in any circumstances. Documents identifying, or capable of identifying, paid or unpaid police informants were accordingly refused production.

Documents relating to named witnesses in matters unconnected with the Thurgar murder, and documents touching on ongoing incomplete investigations (where charges may still be laid), were also refused production. The court accepted that disclosure could compromise those investigations and endanger individuals, including persons associated with a known serious criminal with a history of violence.

Public Interest Immunity: Operational Orders and NCA Materials

Documents relating to the operational orders of a completed investigation were not automatically protected merely because the investigation had concluded. However, documents revealing the administrative arrangements and operational nature of activities of the National Crime Authority were held to be protected on public interest immunity grounds.

Legal Professional Privilege

A number of documents produced by the Director of Public Prosecutions consisted of legal advice given in connection with existing or contemplated proceedings. O'Keefe J confirmed these attracted legal professional privilege on the dominant purpose test and refused production. However, the court identified specific statements within certain documents that fell within the crime-fraud exception, whereby legal advice obtained to further an abuse of statutory authority, or to prevent others from exercising their legal rights, does not attract privilege. Those particular portions were made available to the plaintiff, with the remainder of the judgment on this point kept confidential to allow the defendants an opportunity to consider the reasons.

Orders Made

  • Production of documents identifying police informants refused (categories in paragraphs 2(i), 2(ii), 2(iii), 2(iv), 2(v) and 2(x) of the Senior Assistant Commissioner's affidavit)
  • Production of documents relating to ongoing investigations and named witnesses refused
  • Production of documents protected by legal professional privilege refused, subject to the crime-fraud exception
  • Access granted to those statements within the privileged documents that fell within the crime-fraud exception
  • Further determination reserved in respect of documents objected to on a blanket basis by the Director of Public Prosecutions, pending consideration of that objection

Key Takeaways

  • The informer rule operates as an especially strong form of public interest immunity in civil proceedings: a court does not weigh competing public interests in the usual way, and the identity of police informants is protected from disclosure in all circumstances, save for one narrow exception in criminal proceedings where identification could establish an accused's innocence.
  • Public interest immunity extends beyond informer identity to encompass witnesses in separate criminal matters, the contents of incomplete ongoing investigations, and materials revealing the operational arrangements of law enforcement agencies such as the National Crime Authority.
  • Legal professional privilege attaches to documents created for the dominant purpose of legal advice in connection with existing or contemplated litigation, including documents held by the Director of Public Prosecutions.
  • The crime-fraud exception can displace legal professional privilege where communications were made to further an abuse of statutory authority or to prevent others from exercising legal rights. A party seeking to invoke this exception need not prove the crime or fraud to a final standard, but must demonstrate something that gives colour to the claim.
  • An assertion of public interest immunity by the Crown does not bind the court; the court retains its own duty to examine the claim and is not obliged to accept it as conclusive.

Legislation and Cases Referenced

Legislation
- Evidence Act 1898 (NSW), ss 14CD, 14CF, 14CG
- Royal Commissions Act 1923 (NSW), s 5
- Royal Commission (Police Service) Act 1994 (NSW)
- Evidence Act 1995 (NSW), ss 55, 69(1), 69(2), 69(3), 135, 136, 137; Dictionary Parts 1 and 2, cl 1(1)(d)

Cases
- Marks v Beyfus (1890) 25 QBD 494
- D v National Society for the Prevention of Cruelty to Children [1978] AC 171
- Signorotto v Nicholson [1982] VR 413
- McGuinness v Attorney General (1940) 63 CLR 73
- Cain v Glass (1985) 3 NSWLR 230
- Sankey v Whitlam (1978) 142 CLR 1
- Alister v Regina (1983-1984) 154 CLR 404
- Conway v Rimmer [1968] AC 910
- Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1996-1997) 188 CLR 501
- Grant v Downs (1976) 135 CLR 674
- O'Reilly v State Bank of Victoria Commissioners (1983) 153 CLR 1
- Esso Australia Resources v Federal Commissioner of Taxation (1999) 201 CLR 49
- Thomason v Council of the Municipality of Campbelltown (1939) 39 SR (NSW) 347
- Attorney General (NT) v Kearney (1985) 158 CLR 501
- Clark v United States (1933) 289 US 1
- Regina v Bell; Ex parte Lees (1980) 146 CLR 141
- O'Rourke v Darbishire [1920] AC 581