Citation: R v Medich (No 7) [2016] NSWSC 1481
Court: Supreme Court of New South Wales
Date: 18 October 2016
Judge(s): Bellew J
Background
At the request of the accused, the Supreme Court issued a subpoena on 25 July 2016 requiring the New South Wales Crime Commission to produce a range of documents. Following negotiation between the parties, the scope of the subpoena was narrowed, and some material was produced and made available to the parties. Two documents, however, remained outstanding.
The Commission filed a notice of motion seeking to be excused from producing specific parts of those two documents, relying on a claim of public interest immunity. In support of the claim, the Commission's Assistant Commissioner, Peter Bodor QC, filed both an open affidavit and a confidential affidavit (with a confidential exhibit), the latter containing unredacted copies of the documents with the contested portions highlighted.
Legal Issues
- Whether a legitimate forensic purpose existed for seeking the documents in the context of the accused's trial
- Whether the parts of the documents over which immunity was claimed fell within a recognised category of public interest immunity
- Whether, on balance, the public interest in non-disclosure outweighed the accused's interest in accessing potentially relevant material
Decision
Issue 1: Legitimate forensic purpose
Bellew J accepted that a legitimate forensic purpose existed for seeking the contested material, having regard to the issues as he understood them to arise in the accused's trial (at [6]).
Issue 2: Recognised category of public interest immunity
The court confirmed that the three-step process under s 130 of the Evidence Act 1995 (NSW), consistent with the principles in Sankey v Whitlam and Conway v Rimmer, required identification of the applicable immunity category before any balancing exercise (at [5]). Bellew J was satisfied, after reading Mr Bodor's confidential affidavit, that the disputed parts of the documents fell within one or more recognised categories, though he declined to identify those categories publicly for obvious reasons (at [7]).
Issue 3: Balancing exercise
Bellew J found that the importance and significance of the material, in light of the trial issues, was limited (at [8]). He acknowledged the seriousness of the charges and the accused's entitlement to access material that could advance a defence, but he weighed that against the significant likely effect of disclosure as set out in the confidential affidavit (at [9]-[10]). The court also noted that the information had not been published in any form (at [11]). Taking all factors together, the balance weighed heavily in favour of upholding the Commission's claim (at [12]).
Orders Made
- The New South Wales Crime Commission is to be excused from producing those parts of the two documents caught by the schedule to the subpoena issued on 25 July 2016 as attract the claim for public interest immunity.
Key Takeaways
- Under s 130 of the Evidence Act 1995 (NSW), a court resolving a public interest immunity claim must work through three sequential steps: confirming a legitimate forensic purpose, identifying the applicable immunity category, and then conducting the balancing exercise (at [5]).
- A claim for public interest immunity may be upheld even where the accused faces serious charges and argues an entitlement to access material potentially relevant to their defence, provided the balance of competing interests favours non-disclosure (at [9], [12]).
- The likely effect of disclosure, as disclosed in confidential affidavit evidence, is a material factor in the balancing exercise and need not be publicly articulated by the court (at [10]).
- The absence of any prior publication of the information in question is a relevant consideration supporting non-disclosure in the balancing exercise (at [11]).
- Filing a confidential affidavit in support of a public interest immunity claim accords with the normal practice for resolving such claims (at [2]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW)
Cases
- Conway v Rimmer [1968] AC 910
- Sankey v Whitlam (1978) 142 CLR 1; [1978] HCA 43