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Supreme Court 24 June 2020

R v Barrett (No. 1)

[2020] NSWSC 793

Other
CRIMINAL LAW PRETRIAL HEARING ACCUSED TO ALLOW DECISION WHETHER CO ACCUSED NOT BEING TRUTHFUL CROWN NOT TO CALL CO ACCUSED AT TRIAL

Citation: R v Barrett (No. 1) [2020] NSWSC 793
Court: Supreme Court of New South Wales
Date: 24 June 2020
Judge: Johnson J

Background

The accused, a freelance journalist, faced trial on a charge of blackmail under s.249K(2) of the Crimes Act 1900 (NSW). The Crown alleged he participated in a joint criminal enterprise with two co-accused to extort alleged tax fraud conspirators by threatening media exposure. One co-accused, who had pleaded guilty to related offences, was the subject of the events at the centre of this pretrial hearing.

Between July and September 2019, AFP officers took a draft statement from that co-accused, with a view to potentially calling him as a Crown witness at the accused's trial. The process was terminated in September 2019 after the AFP formed the view that the co-accused was not being truthful. The resulting document was never completed, settled, signed, or adopted by the co-accused. In October 2019, the Crown announced it would not call the co-accused at trial.

The accused sought access to that draft statement, arguing it was subject either to prosecution disclosure obligations or should be produced under a subpoena directed to the AFP Commissioner. The co-accused resisted production by claiming public interest immunity. This pretrial hearing resolved both the disclosure and subpoena questions.

  • Whether the draft, incomplete, and unsigned statement of the co-accused was subject to prosecution disclosure requirements
  • Whether, if not caught by disclosure obligations, the draft statement should nonetheless be produced by the AFP under a subpoena issued by the accused
  • Whether there was a legitimate forensic purpose for the accused to access the statement
  • Whether the co-accused's claim of public interest immunity should prevent production of the document
  • What conditions, if any, should attach to any access granted

Decision

Issue 1: Prosecution disclosure obligations

Johnson J held that the prosecution disclosure principles did not require production of the draft statement. The document had never been completed, signed, or adopted by the co-accused, and the Crown had decided not to call him as a witness. In those circumstances, the statement did not fall within the category of material the prosecution was obliged to disclose to the defence.

Issue 2: Production under subpoena

Despite that conclusion, Johnson J held the accused should be granted access to the draft statement through the subpoena directed to the AFP Commissioner. The court was satisfied that a legitimate forensic purpose existed for the accused to have access to the document, notwithstanding its incomplete and unsigned character.

Issue 3: Public interest immunity

The co-accused's claim of public interest immunity was considered but did not prevail so as to prevent production altogether. The court accepted that some protection was warranted, which informed the conditions attached to access rather than barring it entirely.

Issue 4: Conditions on access

Johnson J directed that access be granted to a redacted version of the draft statement only, subject to strict conditions limiting the number of copies, prohibiting further reproduction, and requiring the copies to be returned and destroyed at the conclusion of proceedings. The court also made non-publication orders under the Court Suppression and Non-publication Orders Act 2010 (NSW) prohibiting disclosure of the fact and contents of the co-accused's cooperation with the AFP in connection with the relevant operation.

Orders Made

  • The accused's Amended Notice of Motion was dismissed
  • The co-accused's Notice of Motion was dismissed
  • The accused was granted access to the redacted draft statement of the co-accused (MFI10) subject to the following conditions:
  • Three copies only to be provided to the accused and his legal representatives
  • No photocopies to be made of the redacted draft statement
  • All copies to be returned at the conclusion of proceedings and destroyed in the presence of the accused's solicitor and a representative of the Australian Government Solicitor
  • A non-publication order was made under s.7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), applying throughout the Commonwealth, prohibiting publication of:
  • Any information tending to disclose that the co-accused provided assistance to the AFP in connection with the relevant operation
  • The contents of any such assistance
  • The non-publication order was made on the grounds in s.8(1)(a) and (c) of that Act

Key Takeaways

  • A draft statement taken from a co-accused that was never completed, signed, or adopted, and which the Crown does not intend to rely upon, does not fall within standard prosecution disclosure obligations under NSW law.
  • Access to such a document may nonetheless be obtained by subpoena where a legitimate forensic purpose for its production is established, even if it remains an unsigned and incomplete draft.
  • Public interest immunity claims raised by a co-accused regarding cooperation material may not prevent production entirely; instead, the competing interests can be balanced through conditions attached to access, such as limits on copying and use.
  • Strict procedural controls on access to sensitive cooperation material, including requirements for return and destruction of copies, are an available mechanism to manage the tension between a fair trial and the protection of a cooperating witness's interests.
  • Non-publication orders under the Court Suppression and Non-publication Orders Act 2010 (NSW) may extend to protect not only the contents of cooperation material but also the bare fact that a co-accused provided assistance to law enforcement.

Legislation and Cases Referenced

Legislation
- Court Suppression and Non-publication Orders Act 2010 (NSW)
- Crimes Act 1900 (NSW)
- Criminal Code (Cth)
- Criminal Procedure Act 1986 (NSW)
- Director of Public Prosecutions Act 1983 (Cth)
- Judiciary Act 1903 (Cth)

Cases
- Attorney General (NSW) v Chidgey (2008) 182 A Crim R 536; [2008] NSWCCA 65
- Attorney General (NSW) v Stuart (1994) 34 NSWLR 667
- Basha v R (1989) 39 A Crim R 337
- Cain v Glass (No. 2) (1985) 3 NSWLR 230
- Derbas v R (2012) 221 A Crim R 13; [2012] NSWCCA 14
- Director of Public Prosecutions (Cth) v Kinghorn [2020] NSWCCA 48
- Gould v Director of Public Prosecutions (Cth) (2018) 333 FLR 352; [2018] NSWCCA 109
- Haydon v Magistrates Court and Rofe (2001) 87 SASR 448; [2001] SASC 65
- Jackson v Wells (1985) 5 FCR 296
- Johnston v R [2017] NSWCCA 53
- Mallard v The Queen (2005) 224 CLR 125; [2005] HCA 68
- R v Kneebone (1996) 47 NSWLR 450
- R v Saleam (1989) 16 NSWLR 14
- R v Smith (1996) 86 A Crim R 308
- R v Xie (No.11) [2014] NSWSC 1977
- Sankey v Whitlam (1978) 142 CLR 1; [1978] HCA 43
- State of New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60
- Young v Quin (1985) 4 FCR 483