R v Atashi; R v Katakouzinos [2021] NSWDC 91

Citation: R v Atashi; R v Katakouzinos [2021] NSWDC 91
Court: District Court of New South Wales
Date: 26 March 2021
Judge(s): Sutherland SC DCJ

Background

Two accused, both alleged members of the North-West Chapter of the Finks outlaw motorcycle gang, faced trial over alleged intimidation and arson at a Baulkham Hills property in November 2017. The Crown case rested almost entirely on an induced statement given by a fellow Finks member, referred to in the judgment as CW, who drove the accused to the scene and witnessed the burning of two vehicles. Because the statement was induced, it could not be used to prosecute CW himself.

CW was later violently assaulted by one of the accused and another gang member in December 2017. He initially gave police a false account of his injuries before eventually cooperating. By April 2018 he had implicated both accused in the arson, and by the time of this application it was disclosed that he had received approximately $30,000 from NSW Police and had relocated interstate for safety reasons.

The defence issued a subpoena to the NSW Commissioner of Police seeking a range of documents bearing on CW's relationship with police. The Commissioner applied by Notice of Motion to have several paragraphs of the subpoena set aside or, alternatively, to be excused from production on grounds of public interest immunity.

Legal Issues

Whether the documents sought by the subpoena had a legitimate forensic purpose sufficient to justify production.
Whether it was "on the cards" that the categories of documents sought would likely exist and materially assist the defence.
Whether the Commissioner of Police should be excused from producing material under specified subpoena paragraphs on grounds of public interest immunity, having regard to the competing interests of witness safety, police methodology, and the accused's right to test the credibility of a critical Crown witness.
Whether certain subpoena paragraphs should be set aside as an abuse of process or as oppressive.

Decision

Legitimate forensic purpose and the "on the cards" test

The court was satisfied that all categories of documents sought in the subpoena had a legitimate forensic purpose, applying Attorney-General (NSW) v Chidgey (2008) 182 A Crim R 536 (at [47]). The court further found it was "on the cards" that documents of the categories sought were likely to exist and would materially assist the defence in challenging CW's credibility, drawing on the test articulated in R v Saleam (1989) 16 NSWLR 14 and Alister v The Queen (1984) 154 CLR 404 (at [54]-[55]). The court noted that questions touching on when and why CW provided his incriminating statements, whether he faced charges at the time, whether charges were discontinued, and the nature of any inducements offered, were all legitimately relevant to credibility (at [68]-[69]).

Paragraphs (a), (b) and (e): contact records, interview records, and correspondence

The court declined to set aside these paragraphs as an abuse of process (at [66]-[67]). It proceeded on the basis that material produced to the court in a confidential affidavit constituted substantial compliance with the call. After reviewing the 23 pages of confidential annexures, the court undertook a balancing exercise under section 130 of the Evidence Act 1995 (NSW) and upheld the claim for public interest immunity in part only. Portions relevant to CW's credibility were to be produced in redacted form, with redactions limited to matters going to witness safety and police methodology (at [69]-[71]). The redacted documents were to be returned to the Commissioner's representative and withheld from the accused's representatives for 28 days pending any superior court review.

Paragraph (c): witness statements relating to other matters

The court set aside this paragraph, which sought witness statements of CW beyond those already forming part of the prosecution brief (at [73]). The court was not satisfied that a legitimate forensic purpose had been established for statements concerning matters outside the current trial, nor that such statements would materially assist the defence. As an alternative, had it reached a different conclusion on the first point, the court indicated it would have upheld a public interest immunity claim over any such statements (at [74]).

Paragraphs (d) and (f): alleged promises and letters of comfort

Nothing was produced in answer to these paragraphs, as the Commissioner's open affidavit deposed that searches had been conducted and no relevant materials existed (at [75]-[76]).

Paragraph (g): redacted financial statement

A financial statement had already been produced showing total payments of approximately $30,000 but with individual payment amounts and some categories redacted. The court upheld the public interest immunity claim with respect to the redacted individual amounts, finding that their disclosure would have little relevance to credibility issues while potentially enabling identification of the witness's current location (at [77]).

Paragraph (h): fact sheets

The amended call under this paragraph had been complied with (at [78]).

Orders Made

Paragraphs (a), (b) and (e): public interest immunity upheld in part; production of an appropriately redacted document required but stayed for 28 days from 26 March 2021.
Paragraph (c): set aside.
Paragraphs (d) and (f): nothing produced; noted accordingly.
Paragraph (g): public interest immunity upheld with respect to the unredacted portions of the financial statement.
Paragraph (h): amended call noted as complied with.
All orders stayed for 28 days from 26 March 2021.
Suppression order as to the identity of CW continued until further order of the court or a superior court.

Key Takeaways

The District Court confirmed that the "on the cards" test for subpoena production, as articulated in Alister v The Queen, remains the operative threshold: the party seeking production need not guarantee the existence of the material but must demonstrate it is likely to exist and likely to materially assist the defence (at [54]-[55]).
A public interest immunity claim does not automatically result in wholesale non-production. Under section 130 of the Evidence Act 1995 (NSW), the court conducts a balancing exercise between the public interest in non-disclosure and the accused's right to material bearing on the credibility of a critical witness, and may order production of a partially redacted document (at [69]-[71]).
Where a Crown witness has provided an induced statement, received significant police payments, and relocated interstate for safety, questions about the timing, circumstances, and incentives surrounding that cooperation are legitimate matters going to credibility and may support a legitimate forensic purpose for subpoena production (at [68]).
Witness safety considerations can justify redaction of portions of otherwise producible documents, particularly where disclosure of specific details could enable identification of a protected witness's current location (at [70]-[71], [77]).
In cases where an informer is called as a witness rather than remaining confidential, the traditional public interest immunity attaching to informer identity may require different analysis, as the accused's right to test the credibility of an accuser is fundamental to a fair trial (at [58]-[60]).

Legislation and Cases Referenced

Legislation
- Courts Suppression and Non-publication Orders Act 2010
- Director of Public Prosecutions Act 1986
- Evidence Act 1995 (NSW)

Cases
- Alister v The Queen [1984] HCA 85; [1983 – 1984] 154 CLR 404
- Attorney-General (NSW) v Chidgey (2008) 182 A Crim R 536
- Darwiche v R [2011] NSWCCA 62
- Darwiche v R; El-Zeyat v R; Aouad v R; Osman v R [2011] NSWCCA 62
- Jarvie v Magistrates’ Court of Victoria [1995] VicRp 5; [1995] 1 VR 84
- R v Fisher (2003) 56 NSWLR 625
- R v Hawi (No 2) [2011] NSWSC 1648
- R v Hughes [1986] NZCA 56; [1986] 2 NZLR 129
- R v Saleam [1999] NSWCCA 86
- R v Saleam (1989) 16 NSWLR 14