FEDERAL COURT OF AUSTRALIA XZ v The Queen [2000] FCA 1143 CRIMINAL LAW – police informer – disclosure of assistance to police endangering safety of informer and family – common law rule against disclosure of informer's identity based on public policy – whether order for non-publication of informer's identity and related evidence warranted – whether publication likely to prejudice administration of justice. Evidence Act 1971 (ACT), s 83(1) Drugs of Dependence Act 1989 (ACT), s 164(2)(c) Magistrates Court Act 1930 (ACT), s 90A Crimes Act 1900 (ACT), s 429A(1)(h) Marks v Beyfus (1890) 25 QBD 494 cited Sankey v Whitlam (1978) 142 CLR 1 cited Signorotto v Nicholson [1982] VR 413 cited Cain v Glass (No 2) [1985] 3 NSWLR 230 cited R v Abdullah [1999] NSWCCA 188 cited R v Lewes Justices; ex parte Secretary of State for the Home Department [1973] AC 388 cited D v National Society for the Prevention of Cruelty to Children [1978] AC 171 cited R v Lennon (1985) 38 SASR 356 cited XZ v THE QUEEN A 25 of 2000 BURCHETT, HIGGINS & KENNY JJ CANBERRA 15 AUGUST 2000 IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A 25 OF 2000 BETWEEN: XZ Applicant AND: THE QUEEN Respondent JUDGES: BURCHETT, HIGGINS & KENNY JJ DATE OF ORDER: 15 AUGUST 2000 WHERE MADE: CANBERRA THE COURT ORDERS THAT: 1. The application for leave to appeal be granted. 2. The appeal be allowed. 3. The publication of evidence (a) identifying or tending to identify the applicant/appellant as being prepared to assist the Australian Federal Police by providing information concerning any person involved in drug trafficking; and (b) the identity of any such person be forbidden. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A 25 OF 2000 BETWEEN: XZ Applicant AND: THE QUEEN Respondent JUDGES: BURCHETT, HIGGINS & KENNY JJ DATE: 15 AUGUST 2000 PLACE: CANBERRA REASONS FOR JUDGMENT THE COURT: 1 The applicant seeks leave to appeal from a decision made by a judge of the Supreme Court of the Australian Capital Territory on 6 April 2000 declining to make an order pursuant to s 83(1) of the Evidence Act 1971 (ACT) forbidding the publication of specified parts of the applicant's evidence. The Court has heard argument upon this application and upon the proposed appeal. 2 The applicant pleaded guilty in the Magistrates Court at Canberra to possessing a traffickable quantity of a prohibited substance (being heroin) for the purpose of sale contrary to s 164(2)(c) of the Drugs of Dependence Act 1989 (ACT). He was committed for sentence to the Supreme Court pursuant to s 90A of the Magistrates Court Act 1930 (ACT). On 6 April 2000, he appeared before the learned sentencing judge, adhered to his plea and sought an adjournment to permit him to provide information to the police prior to sentence. Presumably, this was because, pursuant to s 429A(1)(h) of the Crimes Act 1900 (ACT), a sentencing court must take into account the degree to which an offender has cooperated with law enforcement agencies in their criminal investigations. The applicant also sought an order forbidding the disclosure of his identity and the fact that he was prepared to assist the Australian Federal Police ("the police") by providing them with information concerning the identity of another person involved with him in drug trafficking. 3 Section 83 provides: (1) Where it appears to a court that – (a) the publication of evidence, given or intended to be given, in a proceeding before that court, is likely to prejudice the administration of justice; or (b) in the interests of the administration of justice, it is desirable that the name of a party to, or a witness, or intended witness, in such a proceeding be not published; the court may, at any time during or after the hearing of the proceeding, make an order – (c) forbidding the publication of the evidence or a specified part of the evidence, or of a report of the evidence, either absolutely or subject to such conditions as the court specifies or for such period as is specified; or (d) forbidding the publication of the name of such a party or witness. (2) Where a court makes an order under subsection (1), the court may, if it thinks fit, also direct that persons specified by the court, or all persons except persons so specified, shall remain outside the courtroom for such period as the court specifies. Plainly enough, s 83(1) confers a discretion on a court to forbid the publication of a specified part of the evidence where it appears to the court that the publication of the evidence is "likely to prejudice the administration of justice", or "in the interests of the administration of justice", it is desirable that the name of a party or a witness not be published. In this case, the applicant and the Director of Public Prosecutions join in submitting that, in the circumstances of the case, the sentencing judge acted on a wrong principle in declining to make the orders sought. 4 The applicant gave evidence that he intended to provide to the police information about the involvement of an individual, whom he named, in drug trafficking. The applicant testified that, if the extent of his assistance to the police became public, then his own and, more particularly, his family's safety would be at risk. The applicant stated that: they say if I revealed, then things would happen to my family. Regarding my cooperation with the police I am not worried because by doing that I will help myself and I will also help my family, but I am worried [about] my family's safety. A police officer also gave evidence that the police had received information concerning the person whom the applicant had named connecting that named individual with violent conduct. The police officer also stated that, if told that that named individual was the author of a threat to someone who was involved with him in the drug trade, the police would take the threat seriously. After considering the evidence, the sentencing judge declined to make the orders sought. His Honour stated as follows: I accept [the applicant's] evidence that he believes that he or his family may be the subject of violence on the part of the man named, or on the part of persons controlled or instructed, or somehow or other associated with the man named. I accept the evidence of the police officer that such threats cannot be dismissed and violence is always possible. But I am unable to accept that the state of affairs in the Territory, at the present time, is such that the administration of justice can only proceed by the suppression of matters which ordinarily ought be made public and which, in the context of the present case, I think [should] be made public. The minimisation of drug traffic, I think, is likely to be assisted by the glare of publicity, rather than by the suppression of evidence, or the suppression of publicity of evidence. So I simply decline to make the order sought. 5 At common law, the rule is that the identity of a police informer must not be disclosed in legal proceedings except where the disclosure of the identity of an informer is required for the defence of an accused: see Marks v Beyfus (1890) 25 QBD 494 at 498 and 500; Sankey v Whitlam (1978) 142 CLR 1 at 61; Signorotto v Nicholson [1982] VR 413 at 423; Cain v Glass (No 2) [1985] 3 NSWLR 230 at 233-234, 242, 247; and R v Abdullah [1999] NSWCCA 188 at pars 20-22. The justification for the rule is that, if the identity of an informer were liable to be disclosed, then the flow of information from police informers would be likely to dry up, and the police would be hindered in their duty of preventing and detecting crime. The public interest served by the rule is well accepted. Indeed, outside the immediate scope of the informer rule, courts have repeatedly held that the identity of a police informer should, as a matter of public interest, be protected against disclosure: see Signorotto v Nicholson at 417; R v Lewes Justices; ex parte Secretary of State for the Home Department [1973] AC 388 at 401 and 407-8; and D v National Society for the Prevention of Cruelty to Children [1978] AC 171 at 218, 232, 241. The authorities have thus come to recognise the principle that the identity of a police informer should, as a matter of public policy, be protected against disclosure save where a countervailing public interest is shown. This aspect of public policy is calculated to protect the administration of justice from the harm that would follow were the police to be hindered in preventing and detecting crimes by the drying up of information from police informers. The importance of the policy was emphasised by Bowen LJ in Marks v Beyfus at 500, when he made it clear the privilege does not depend upon the taking of the point by a witness, but should be asserted by immediate intervention by the judge as soon as disclosure is threatened (see also Signorotto at 419). 6 In this case, no party submitted that there was a countervailing public interest favouring the disclosure of the applicant's identity and the fact that he was prepared to assist the police by providing them with information concerning the identity of another person who was involved in drug trafficking. No evidence to that effect was led. Unfortunately, his Honour's attention was not drawn to the authorities mentioned above, although the evidence before him indicated that the principle which they accept was applicable in the circumstances of the case. The authorities accept that, save where there is a countervailing interest, the identity of a police informer should be protected from disclosure to prevent the harm to the administration of justice that such disclosure would be likely to effect. This is, so it seems to us, the very kind of matter with which s 83(1)(a) of the Evidence Act 1971 is concerned: cf R v Lennon (1985) 38 SASR 356. It is, we think, plain enough that his Honour made his decision without regard to this consideration which was relevant in the circumstances of this case and that, accordingly, the exercise of his Honour's discretion miscarried. 7 Having regard to the authorities to which we have referred and the evidence before the sentencing judge, we would grant the application for leave to appeal and allow the appeal. Further we would order that, pursuant to s 83(1) of the Evidence Act 1971, publication be forbidden of evidence (a) identifying or tending to identify the applicant as being prepared to assist the police by providing them with information concerning any person who was involved in drug trafficking with him and (b) the identity of any such person. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court. Associate: Dated: 15 August 2000 Counsel for the Applicant: Mr G Corr Solicitor for the Applicant: Legal Aid Office (ACT) Counsel for the Respondent: Mr R Refshauge SC Solicitor for the Respondent: Director of Public Prosecutions Date of Hearing: 15 August 2000 Date of Judgment: 15 August 2000