Citation: Regina v Amir Ibrahim El Mostafa and Saleh Khodr [2007] NSWDC 334
Court: District Court of New South Wales
Date: 16 May 2007
Judge(s): Cogswell SC DCJ
Background
Two accused, El Mostafa and Khodr, were the subject of criminal proceedings in the NSW District Court. The case involved events at Auburn Police Station on the night of 30 January and early morning of 31 January 2005, where a number of community members had gathered.
A witness, Miss Al Hinti, gave evidence on 14 May 2007 in her capacity as an ethnic community liaison officer. Her role involved building and maintaining trust between police and the local Arabic-speaking community around Auburn. During re-examination by the Crown Prosecutor, she was asked to name an individual who had acted as a spokesperson for a predominantly Shi'ite group of community members present at the station that night. She declined to answer.
The Commissioner of Police subsequently formalised an application for a direction that the question not be required to be answered, invoking public interest immunity under s 130 of the Evidence Act 1995.
Legal Issues
- Whether the identity of the community spokesperson constituted a confidential source of information relating to the enforcement or administration of a law of the state, attracting public interest immunity under s 130(4)(e) of the Evidence Act 1995
- Whether the public interest in protecting that confidential relationship outweighed the Crown's forensic interest in disclosing the name
Decision
The court accepted Miss Al Hinti's evidence that disclosing the spokesperson's name would jeopardise the relationships she had worked to build between the police and the Auburn community. The court was satisfied that the person in question fell within the category of a confidential source of information relating to law enforcement, engaging the immunity provided by s 130(4)(e).
The Crown's forensic interest in disclosure was to counter an anticipated defence submission that the unnamed spokesperson had not been called because their evidence would be unhelpful to the Crown. While the court acknowledged this was a legitimate forensic concern, it found the public interest in maintaining the confidentiality of that source clearly outweighed the benefit of disclosure.
The court also noted a broader systemic consideration: ordering disclosure in this case would discourage other community members from stepping into similar liaison roles with police. The long-standing protection courts have afforded to confidential police informers reinforced this conclusion.
Orders Made
- The court directed that the answer to the question "Who was the spokesperson that night at the Auburn Police Station?" not be adduced as evidence.
Key Takeaways
- The District Court confirmed that the identity of a community spokesperson who serves as a source of information for police can attract public interest immunity under s 130(4)(e) of the Evidence Act 1995, not merely the identity of a traditional covert informer.
- A balancing exercise is required: the court weighed the Crown's forensic need for disclosure against the harm to confidential police-community relationships, and found the latter prevailed.
- Broader systemic consequences are a legitimate consideration in the balancing exercise. The risk that disclosure would deter future community members from assisting police was a factor that weighed against requiring the name to be given.
- Long-standing judicial protection of confidential police informers was affirmed as an important principle underpinning the court's reasoning.
- The absence of the unnamed individual from the proceedings left open the prospect of a defence "uncalled witness" submission, a forensic consequence the court accepted but did not treat as decisive.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), s 130(4)(e)
Cases
- No cases were cited in the judgment text provided.