Citation: R v Rogerson; R v McNamara (No 35) [2016] NSWSC 301
Court: Supreme Court of New South Wales
Date: 17 March 2016
Judge: Bellew J
Background
This decision arose in the course of a criminal trial in which two accused, referred to here by their roles, faced serious charges. One accused, McNamara, had issued a subpoena to the Registrar of the District Court of NSW seeking production of a large volume of documents.
When the produced documents were inspected by McNamara's solicitor, a sealed envelope was discovered among the materials. The envelope bore an endorsement stating it was not to be opened without an order from a District Court judge or a judge of a superior court. McNamara's solicitor immediately brought the envelope to the court's attention.
Bellew J, recognising that the contents appeared prima facie susceptible to a claim for public interest immunity, provided the material to the NSW Police solicitor so the Commissioner of Police could consider whether to make such a claim. All parties consented to that course. The Commissioner subsequently made a formal claim for public interest immunity, supported by both an open affidavit and a confidential affidavit from Assistant Commissioner Lanyon.
Legal Issues
- Whether the public interest in admitting the contents of the sealed envelope into evidence was outweighed by the public interest in preserving their secrecy and confidentiality, pursuant to s 130 of the Evidence Act 1995 (NSW)
- Whether the procedural approach of receiving confidential evidence in support of the immunity claim, withheld from the defence, was appropriate
Decision
Bellew J conducted the balancing exercise required by s 130 of the Evidence Act 1995 (NSW), which permits a court to exclude information or documents relating to "matters of state" where the public interest in secrecy outweighs the public interest in adducing the evidence. His Honour took into account the factors set out in ss 130(4) and (5), including the issues in the trial, the nature of McNamara's defence, and the fact that each accused was running what the court described as a "cut throat" defence against the other.
Because McNamara's counsel had not been provided with the confidential affidavit, she was limited to submitting that the court should conduct the balancing exercise with reference to the known trial issues. Bellew J accepted that the practice of receiving confidential evidence in support of an immunity claim, without disclosure to the other party, is well recognised as appropriate, citing R v Meissner (1994) 76 A Crim R 81 and National Crime Authority v Gould (1989) 90 A Crim R 489.
After reviewing both the open and confidential affidavits, and the documents themselves, Bellew J was satisfied that the material fell within a well-recognised category whose disclosure the courts have accepted may harm the public interest. His Honour upheld the Commissioner's claim. The judgment deliberately refrains from further describing the contents of the material, in order to preserve its confidentiality.
Orders Made
• The claim for privilege made on behalf of the Commissioner is upheld
• The contents of exhibit MAL1 are not to be admitted into evidence
Key Takeaways
- Under s 130 of the Evidence Act 1995 (NSW), a court may exclude documents relating to "matters of state" where the public interest in confidentiality outweighs the public interest in their admission as evidence, and that section broadly reflects the common law principles established in Sankey v Whitlam and Conway v Rimmer.
- A court conducting a public interest immunity balancing exercise may receive confidential affidavit evidence in support of the claim without disclosing that material to the opposing party; this practice is established by R v Meissner and National Crime Authority v Gould.
- The court is entitled to inform itself in any way it thinks fit when deciding whether to grant a public interest immunity direction, as expressly provided by s 130(3).
- Relevant considerations under s 130(5) include the importance of the document to the proceedings, the nature of the offence, and whether the party seeking to adduce the material is a defendant rather than the prosecution.
- Prompt disclosure by a legal practitioner upon discovering potentially sensitive materials produced on subpoena was recognised by Bellew J as appropriate professional conduct.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), s 130
Cases
- Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1
- Conway v Rimmer [1968] AC 910
- Cain v Glass (No 2) (1985) 3 NSWLR 230
- R v Meissner (1994) 76 A Crim R 81
- National Crime Authority v Gould (1989) 90 A Crim R 489