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Supreme Court 9 February 2016

R v Rogerson; R v McNamara (No 18)

[2016] NSWSC 40

HomicidePublic order & justice offences
CRIMINAL LAW PRACTICE AND PROCEDURE CLAIM UPHELD

Citation: R v Rogerson; R v McNamara (No 18) [2016] NSWSC 40
Court: Supreme Court of New South Wales
Date: 9 February 2016
Judge: Bellew J

Background

This decision arises from criminal proceedings against two accused, one of whom was Glen Patrick McNamara. His legal representatives issued a subpoena to the Commissioner of New South Wales Police, returnable the day after it was issued. The subpoena sought documents relating to any assistance, benefit, or inducement provided by NSW Police to two named prosecution witnesses, as well as documents recording information those witnesses had provided to police about Triad or other Asian criminal groups.

The Commissioner responded by filing a notice of motion seeking to be excused from producing documents that were properly the subject of a public interest immunity claim. In support of that application, the Commissioner filed both an open affidavit and a confidential affidavit from Assistant Commissioner Walton. The confidential affidavit was provided to the court but withheld from the parties, a procedure consistent with established practice in public interest immunity claims.

The documents in question, identified as annexures to the confidential affidavit, represented the entirety of the material that would otherwise have been produced in response to the subpoena.

  • Whether the Commissioner of Police should be excused from producing documents in answer to a subpoena on the grounds of public interest immunity.
  • Whether the court, having conducted the balancing exercise required under s 130 of the Evidence Act 1995 (NSW), was satisfied that the public interest in preserving the secrecy of the documents outweighed the public interest in making them available.
  • Whether any part of the documents containing potentially relevant information could be severed from the parts attracting immunity.

Decision

Bellew J conducted the balancing exercise mandated by s 130 of the Evidence Act 1995 (NSW), which reflects the common law principles articulated by the High Court in Sankey v Whitlam [1978] HCA 43. That balancing exercise required the court to weigh, among other considerations, the importance of the documents to the proceedings, the nature of the offence, the likely effect of adducing the evidence, and whether the substance of the information had already been published. These factors are mandatory but not exhaustive.

Defence counsel had indicated that the purpose of the subpoena was to explore whether the two prosecution witnesses had provided information to police about their membership of, or association with, Triad groups. Without disclosing the content of the documents, Bellew J found that the material did not go to either of the issues defence counsel had identified.

Notwithstanding the absence of the sought information, the documents contained material of a highly confidential and sensitive nature that could not be severed from any potentially relevant content. Bellew J was satisfied, having read the confidential affidavit in detail, that the public interest in disclosure was outweighed, and outweighed significantly, by the public interest in maintaining secrecy. The Commissioner's application was granted.

Orders Made

  • Leave was granted to the Commissioner to file in court the notice of motion, the open affidavit, and the confidential affidavit of Assistant Commissioner Walton, all dated 9 February 2016.
  • The Commissioner was excused from producing any document properly the subject of a public interest immunity claim in answer to the subpoena issued on 8 February 2016, including annexures B and C to the confidential affidavit.
  • The confidential affidavit was returned to counsel for the Commissioner, on the understanding that it could be produced at short notice if any related issue arose in the future.

Key Takeaways

  • Section 130 of the Evidence Act 1995 (NSW) codifies the common law balancing exercise for public interest immunity claims, requiring courts to weigh the importance of the documents to the proceedings against the public interest in preserving their confidentiality.
  • The practice of receiving a confidential affidavit from the claiming party, without providing that affidavit to the other parties, is recognised as appropriate in public interest immunity applications, as confirmed by reference to R v Meissner, DPP v Smith, and National Crime Authority v Gould.
  • Cross-examination on a confidential affidavit supporting a public interest immunity claim may be permitted in rare or exceptional circumstances, but it is not available as of right and was not sought in this matter.
  • A finding that the subpoenaed documents do not contain the information the issuing party actually sought does not, of itself, defeat an immunity claim if the documents contain separately sensitive material that cannot be severed.
  • The Supreme Court upheld the immunity claim on the basis that the public interest in secrecy significantly outweighed the interest in disclosure, without elaborating on the content of the documents in order to preserve their confidentiality.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), s 130

Cases
- Sankey v Whitlam [1978] HCA 43
- R v Meissner (1994) 76 A Crim R 81
- DPP v Smith (1996) 86 A Crim R 308
- National Crime Authority v Gould (1989) 90 ALR 489