Citation: R v Bushell; R v Tozer (No 11) [2023] NSWSC 1447
Court: Supreme Court of New South Wales
Date: 10 August 2023
Judge: Rothman J
Background
Two accused persons are standing trial in the Supreme Court. In the course of pre-trial proceedings, the Crown disclosed to the accused a witness statement that had originally been made in separate proceedings. The statement was provided to the accused in a heavily redacted form, but the Crown held a less redacted version, and the Commissioner of Police provided the court with a wholly unredacted version.
The witness statement bore on the credit of a witness expected to give evidence damaging to the interests of the accused at trial. Witness credit is directly relevant in criminal proceedings because it affects the probability of disputed facts being established.
The Commissioner of Police claimed public interest immunity over the redacted portions of the statement, asserting that disclosure posed unacceptable risks to the safety of persons who had assisted police and would interfere with other ongoing investigations. The court was required to determine the extent to which those redacted portions should nonetheless be made available to the accused.
Legal Issues
- Whether public interest immunity arose in relation to the redacted portions of the witness statement, given the safety risks identified by the Commissioner of Police
- Whether the accused had demonstrated that disclosure of the withheld material would be likely to assist their case materially
- What procedure should govern access to any material that survived the public interest immunity claim, given the competing public interests at stake
Decision
Issue 1: Whether public interest immunity arose
Rothman J applied the three-step framework described in Alister v The Queen and Sankey v Whitlam, which requires the court to assess first the harm that would flow from disclosure. The Commissioner's confidential affidavit demonstrated an unacceptable risk to the safety of persons who had assisted police, as well as risks of interference with other proceedings and investigations (at [17]). The court upheld the Commissioner's claim of public interest immunity, finding that the harm identified outweighed the prima facie duty of disclosure (at [20]).
Issue 2: Whether disclosure would materially assist the accused
The second step of the framework required the accused to show that the withheld material would be likely to assist their case materially (at [14]). The court accepted that some, but not all, of the material in the unredacted version met that threshold (at [22]-[23]). Material that did not meet that test remained appropriately redacted, while material that did was required to be disclosed.
Issue 3: Procedure for managing competing public interests
The third step involved devising a procedure that accommodated both the public interest immunity and the accused's legitimate need for access (at [15]). The court determined that the relevant material would assist counsel in cross-examining the witness and was not the kind of material requiring instructions from the accused themselves (at [25]). Accordingly, the court adopted a process of producing a freshly marked, partially redacted version of the document, to be provided to counsel for the accused only, subject to strict non-publication conditions and a suppression order under the Court Suppression and Non-Publication Orders Act 2010 (NSW).
Orders Made
- The Commissioner's claim of public interest immunity was upheld.
- The court accepted that some material for which public interest immunity was granted would materially assist the cases of the accused, and that some previously redacted material is required to be disclosed by the Crown.
- The Crown is required to disclose the contents of the document in accordance with the court's marked copy, subject to these conditions: the newly redacted document is to be provided to counsel for the accused only; counsel must not further publish the document or its contents.
- The document is not to be published in any other manner except by order of the court.
- Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), the statement of Witness A dated 19 July 2022 (disclosed to the accused on 10 August 2023) and its contents are not to be further disclosed except to: judicial officers; court staff; legal representatives of the Crown and the Commissioner of Police; and counsel for the accused.
Key Takeaways
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In criminal proceedings involving a public interest immunity claim, the court applied a three-step framework: first, assessing the harm from disclosure; second, determining whether the accused has shown the material would materially assist their case; and third, devising a procedure that balances competing public interests (at [12]-[15]).
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The moving party bears the onus of demonstrating that harm would flow from disclosure, with the court's initial position being to incline prima facie against disclosure; unsubstantiated assertions of harm are insufficient (at [12]-[13]).
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An accused seeking access to material otherwise protected by public interest immunity must establish that disclosure would be likely to assist their case materially, not merely that the material is relevant (at [14]).
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Where only some portions of a protected document clear the materiality threshold, a court may adopt a calibrated approach, producing a bespoke partially redacted version rather than ordering full disclosure or full suppression (at [23]-[26]).
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Access to sensitive material can, in appropriate circumstances, be limited to counsel alone where the material is of a nature that would assist in cross-examination rather than requiring instructions from the accused (at [25]-[26]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW) , s 130
- Court Suppression and Non-Publication Orders Act 2010 (NSW) , s 7
Cases
- Alister v The Queen (1983) 154 CLR 404; [1978] HCA 43
- Sankey v Whitlem (1978) 142 CLR 1; [1978] HCA 43