Citation: R v Sparos [2018] NSWSC 712
Court: Supreme Court of New South Wales
Date: 21 May 2018
Judge: Harrison J
Background
The accused was on trial for murder. In the course of the proceedings, he caused a subpoena to be issued to the Commissioner of the NSW Police Force, seeking production of notes made by detectives who had interviewed a Crown witness (referred to as Witness E) while he was incarcerated at Long Bay Hospital Correction Centre.
The Commissioner produced a redacted version of the relevant document, known as IN264, which was a contemporaneous record of that interview. The Commissioner then moved to set aside the subpoena in relation to the remaining, undisclosed portions of the document, relying primarily on public interest immunity.
A claim for public interest immunity over IN264 had previously been upheld by Adams J in May 2016, at a time when Witness E was not yet a Crown witness. By the time of this application, Witness E had provided a statement to police and was expected to give evidence at trial.
Legal Issues
- Whether the undisclosed portions of IN264 were caught by a valid public interest immunity claim under s 130 of the Evidence Act 1995 (NSW)
- Whether the public interest in preserving confidentiality in the document outweighed the accused's interest in disclosure for the purposes of his defence
- Whether partial measures, such as redacting identifying names or providing the document confidentially to legal representatives only, could adequately address the competing public interests
Decision
Harrison J conducted the balancing exercise required under s 130(1) of the Evidence Act, weighing the public interest in confidentiality against the public interest in disclosure to the accused. His Honour read the unredacted document and the confidential affidavits in full, without disclosing their contents, as permitted by the Act and consistent with the approach endorsed in Attorney General (NSW) v Kaddour & Turkmani.
The Commissioner relied on ss 130(4)(c) and (e), which deem a document to relate to "matters of state" where its production would prejudice the prevention, investigation or prosecution of an offence, or disclose the existence or identity of a confidential source of information. The confidential affidavit of the Acting Assistant Commissioner addressed those specific concerns. His Honour was satisfied both statutory conditions were engaged.
The accused argued the document was of critical importance to the defence because it potentially bore on the credibility of Witness E and on conversations Witness E may have had with the accused. His Honour was not persuaded. The undisclosed portions of IN264 did not, on examination, relate to the murder. Having weighed the limited forensic utility of the material against the public interest in confidentiality, His Honour found the balance clearly favoured non-disclosure, and was satisfied the accused's right to a fair trial would not be impaired.
On the question of partial remedies, His Honour rejected the suggestion that redacting names or providing the document confidentially to legal representatives only would suffice. Relying on observations in Obeid v Ipp, His Honour found the sensitive nature of the information extended beyond the names of individuals mentioned, and that any widening of access increased the risk of inadvertent disclosure that could compromise the safety of persons concerned.
Orders Made
- The Commissioner's claim for public interest immunity in relation to the undisclosed portion of IN264 was upheld.
- Under s 130(1) of the Evidence Act 1995, IN264 was directed not to be adduced in the trial.
- Paragraph 4 of the subpoena was set aside to the extent that the Commissioner was not required to produce IN264.
Key Takeaways
- Under s 130 of the Evidence Act 1995 (NSW), a court may direct that a document not be adduced in evidence where the public interest in confidentiality outweighs the public interest in disclosure, even in criminal proceedings where an accused's fair trial rights are engaged.
- The balancing test articulated in Alister v The Queen (1984) 154 CLR 404 continues to apply under s 130, requiring the court to weigh potential harm from production against the evidentiary importance of the documents to the litigation.
- A court conducting a public interest immunity inquiry may read unredacted documents and confidential affidavits without disclosing their contents to the parties, relying on s 130(3) of the Evidence Act.
- Where a document engages ss 130(4)(c) and (e), covering prejudice to law enforcement and the protection of confidential sources, those considerations can outweigh a defendant's interest in disclosure even where the accused contends the material is relevant to witness credibility.
- Partial remedies such as redacting names or providing restricted access to legal representatives only will not necessarily satisfy the immunity claim, particularly where the sensitivity of the information extends beyond the identities of named individuals and physical safety concerns are in play.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), s 130
Cases
- Alister v The Queen (1984) 154 CLR 404; [1984] HCA 85
- Attorney General (NSW) v Kaddour & Turkmani [2001] NSWCCA 456
- Attorney General (NSW) v Lipton (2012) 224 A Crim R 177; [2012] NSWCA 156
- Attorney General for New South Wales v Smith (1996) 86 A Crim R 308
- Attorney General for New South Wales v Stuart (1994) 34 NSWLR 667
- Beneficial Finance Corporation Ltd v Commissioner of Australian Federal Police (1991) 51 A Crim R 423
- Eastman v R (1997) 76 FCR 9
- Gardiner v R (2006) 162 A Crim R 233; [2006] NSWCCA 190
- Obeid v Ipp (2012) 224 A Crim R 177; [2012] NSWCA 156
- Public Transport Ticketing Corporation v Integrated Transit Solutions [2010] NSWSC 607
- R v Abdullah [1999] NSWCA 188
- R v Sparos [2018] NSWSC 711
- Ryan v Victoria [2015] VSCA 353
- State of New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60