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District Court 16 March 2021

R v Sun

[2021] NSWDC 834

Drugs

Citation: R v Sun [2021] NSWDC 834
Court: District Court of New South Wales
Date: 16 March 2021
Judge(s): Bennett SC DCJ

Background

The accused faced trial on two counts under the Drug Misuse and Trafficking Act 1985: supplying methylamphetamine in an amount exceeding the indictable quantity, and supplying a prohibited drug on three or more occasions within thirty consecutive days for financial or material reward. Both counts related to conduct in September 2018 at Burwood, New South Wales.

The prosecution's case arose from an authorised controlled operation involving both police and a civilian participant. The accused brought a pre-trial application to exclude all Crown evidence, arguing that the controlled operation was conducted improperly. A separate and significant issue also arose concerning public interest immunity over certain police documents and information.

  • Whether all Crown evidence should be excluded under s 138 of the Evidence Act 1995 on the basis that the controlled operation endangered the health or safety of the accused, contrary to s 7(1)(b) of the Law Enforcement (Controlled Operations) Act 1997
  • Whether a voir dire hearing in a criminal trial constitutes an "interlocutory proceeding" within the meaning of s 75 of the Evidence Act 1995, thereby permitting the accused to rely on hearsay evidence without restriction
  • Whether public interest immunity should be upheld over certain police documents and information sought in connection with the trial

Decision

Exclusion of Evidence Application

The accused sought to establish that a civilian participant in the controlled operation had induced his involvement through threats of violence to him and his family. However, the only evidence advanced in support of this application was an affidavit from the accused's solicitor, to which was annexed a proof of anticipated evidence from a third party recounting what the accused had allegedly told him. The court found this hearsay material was not in admissible form and could not sustain the application.

Counsel for the accused argued that a voir dire constitutes an "interlocutory proceeding" under s 75 of the Evidence Act 1995, which would have freed the accused from the hearsay rule provided the source of the evidence was identified. The court rejected this argument. Drawing on Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2008] NSWSC 637 and R v JF [2009] ACTSC 104, the court held that a voir dire conducted under s 189 of the Evidence Act 1995 is not an interlocutory proceeding but a part of the trial itself. Section 130(3) of the Criminal Procedure Act 1986 reinforced this conclusion: proceedings held after an indictment is presented but before a jury is empanelled are part of the trial, not collateral or interlocutory proceedings. With no admissible evidence to support the exclusion application, counsel withdrew it and the trial proceeded.

Public Interest Immunity

The Commissioner of Police claimed public interest immunity over certain documents and information unrelated to the charges but arising in the context of the trial. The court received confidential affidavits and submissions from the Commissioner's counsel and reviewed the material in private. Applying s 130 of the Evidence Act 1995, the court was satisfied that the public interest in preserving secrecy and confidentiality in relation to the information and documents outweighed the public interest in admitting that evidence. The court also upheld the immunity on the basis of s 130(4)(c) and (e) of the Act. In reaching that conclusion, the court considered the potential use the accused might wish to make of the material, the importance of the evidence to the proceedings, the Crown's significant reliance on the evidence of a particular witness (referred to as Witness A), and the difficulty of limiting publication once disclosure occurred.

Orders Made

  • Evidence, submissions, discussions, information, or documents in the trial that identify or might tend to identify any person as a police informer were suppressed until further order of the court, pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010, on specified grounds.
  • Public interest immunity was upheld over the documents and information provided to the court in confidence by the Commissioner of Police; access to that material was refused and the information was not permitted to be adduced as evidence.

Key Takeaways

  • A voir dire hearing conducted under s 189 of the Evidence Act 1995 in a criminal trial is not an "interlocutory proceeding" for the purposes of s 75 of that Act. The hearsay exception created by s 75 is therefore not available on the voir dire.
  • Section 130(3) of the Criminal Procedure Act 1986 expressly provides that pre-empanelment proceedings on indictment are part of the trial, reinforcing the conclusion that voir dire hearings are not interlocutory in character.
  • Where a party seeks to exclude evidence on a voir dire by relying on hearsay material, and no other hearsay exception applies, that material will not be admitted. The result here was that the application to exclude all Crown evidence was unsupportable and was withdrawn.
  • Under s 130 of the Evidence Act 1995, a court may uphold a public interest immunity claim where the public interest in maintaining confidentiality outweighs the public interest in the admission of the evidence. Factors relevant to that balancing exercise include the nature of the proceedings, the centrality of particular witnesses to the Crown case, and the practical difficulty of limiting publication once disclosure occurs.
  • Confidential affidavit material provided to a court in support of a public interest immunity claim may be reviewed without disclosure to the parties, and a court may decline to repeat the substance of that material in its published reasons where doing so would itself defeat the protection sought.

Legislation and Cases Referenced

Legislation
- Court Suppression and Non-Publication Orders Act 2010 (NSW)
- Criminal Procedure Act 1986 (NSW), particularly s 130
- Director of Public Prosecutions Act 1986 (NSW), s 15A(7)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25A(1)
- Evidence Act 1995 (NSW), ss 75, 130, 138, 189, 190
- Jury Act 1977 (NSW)
- Law Enforcement (Controlled Operations) Act 1997 (NSW), s 7(1)

Cases
- Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 3) (1996) 64 FCR 55
- Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419
- Attorney General (NSW) v Stuart (1994) 75 A Crim R 8
- Grey v R [2001] HCA 65
- R v Amo and Amuna [1963] P&NGLR 22
- R v JF [2009] ACTSC 104
- Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2008] NSWSC 637