Citation: Derbas v R [2012] NSWCCA 14
Court: NSW Court of Criminal Appeal
Date: 21 February 2012
Judges: Meagher JA (principal judgment), Hoeben J, Rothman J
Background
The accused faced charges including supplying a prohibited drug and possessing firearms, following the execution of a search warrant at his home in Punchbowl in November 2008. The warrant application had been made by a detective and contained a narrative of the grounds relied upon, which referred to information obtained from a confidential police informer. The accused obtained the warrant application document via subpoena to the Local Court registrar.
The Commissioner of Police sought to prevent any access to the application on public interest immunity grounds, arguing that the document would disclose the identity of a police informer. The primary judge (King DCJ in the District Court) rejected that claim in part and ordered that a limited, partially masked version of the document be produced to the parties.
The Attorney General appealed that interlocutory ruling to the Court of Criminal Appeal under s 5F of the Criminal Appeal Act 1912.
Legal Issues
- Whether the common law or the Evidence Act 1995 (specifically s 130) governed the public interest immunity claim over the document
- Whether the Commissioner's claim to public interest immunity from production of the warrant application should have been upheld to prevent disclosure of the informer's identity
- Whether the accused had established a sufficient basis to override the immunity, either by demonstrating that disclosure was necessary to establish innocence or by satisfying the balancing test in favour of production
Decision
Common law governs the immunity claim. Meagher JA confirmed that the primary judge was correct to apply common law principles rather than s 130 of the Evidence Act. The relevant question was whether inspection of a document produced to the court should be permitted, not whether the document should be admitted into evidence. Furthermore, s 131A was not engaged because the person producing the documents (the Local Court registrar) and the person claiming immunity (the Commissioner) were distinct entities, a position consistent with the NSW Court of Appeal's reasoning in a prior ticketing corporation case.
The balancing exercise favoured non-disclosure. At common law, there is a strong public interest in protecting the identities of police informers, and the accused must do more than show that disclosure "might" be of some assistance. Meagher JA examined the accused's identified defences, including that he had been coerced by his cousin to hold the bag containing the drugs and firearms, and that the admissions were false. Significantly, two signed statements from Detective O'Neill had already been provided to the accused summarising what the informer had communicated. That material substantially addressed the accused's stated need for the document.
The threshold for overriding the immunity was not met. The court held that the accused had not established more than a possibility that disclosure of the informer's identity might assist his defence, depending on how the trial unfolded. That level of speculative potential benefit was insufficient to displace the public interest in non-disclosure. The court emphasised that this conclusion did not permanently foreclose the question: a further application could be made during the trial if changed circumstances justified it.
Orders Made
- The appeal was allowed
- Orders 1, 2, 3 and 4 made by King DCJ on 24 February 2011 were set aside
- No access was to be granted to the document headed "Application for Part 5 Search Warrant/Record of Application" dated 23 November 2008 and signed by Detective Paul O'Neill
Key Takeaways
- The Court of Criminal Appeal confirmed that common law principles, not s 130 of the Evidence Act 1995, govern public interest immunity claims where the objecting party and the producing party are distinct entities and the question is one of inspection rather than admission into evidence.
- A strong presumption at common law protects police informer identities from disclosure; to overcome it, the accused must demonstrate that disclosure is genuinely necessary to establish innocence, not merely that it might be of some assistance.
- Where police have already provided signed statements summarising the substance of what an informer communicated, that disclosure may substantially satisfy the accused's identified forensic needs and weigh against ordering further production of the underlying source document.
- Refusing production at a particular stage of proceedings does not bar renewal of the application during trial if the circumstances at that point provide a stronger basis for disclosure.
- The interplay between s 130 and s 131A of the Evidence Act requires careful attention to the identity of the producing party versus the objecting party; where those are different persons, neither provision is enlivened.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 29
- Evidence Act 1995 (NSW), ss 130, 131A
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 7
- Law Enforcement (Powers and Responsibilities) Regulation 2005 (NSW), cl 4(1)(a)
Cases:
- Alister v The Queen (1984) 154 CLR 404
- Attorney General for New South Wales v Chidgey (2008) 182 A Crim R 536
- Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667
- Cain v Glass (No. 2) (1985) 3 NSWLR 230
- DPP v Smith (1996) 86 A Crim R 308
- Haydon v Magistrates Court of South Australia (2001) 87 SASR 448
- Marks v Beyfus (1890) 25 QBD 494
- R v Carey (1990) 20 NSWLR 292
- Sankey v Whitlam (1978) 142 CLR 1
- State of New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60