R v Bushell; R v Tozer (No 10) [2023] NSWSC 1446

Supreme Court New South Wales

Medium Neutral Citation: R v Bushell; R v Tozer (No 10) [2023] NSWSC 1446 Hearing dates: 26-28, 31 July, 01-04, 07 August 2023 Decision date: 07 August 2023 Jurisdiction: Common Law Before: Rothman J Decision: The Commissioner's claim of public interest immunity is upheld. Catchwords: EVIDENCE – public interest immunity – safety of witness providing assistance to Crown – immunity granted – production set aside Legislation Cited: Evidence Act 1995 (NSW), ss 55, 56 Category: Procedural rulings Parties: Rex (Crown) Daniel Michael Bushell (Accused) John Jamie Tozer (Accused/Respondent) Commissioner of Police, New South Wales Police Force (Applicant) Representation: Counsel: G Wright SC/J Sfinas (Crown) R Pontello SC (Accused Bushell) A Djemal (Accused Tozer/Respondent) M Varley (Applicant)

Solicitors: Director of Public Prosecutions (NSW) (Crown) Jamieson Criminal Law (Accused Bushell) Fahmy Lawyers (Accused Tozer/Respondent) Crown Solicitor's Office (Applicant) File Number(s): 2018/229735; 2018/230025

ex tempore JUDGMENT 1. HIS HONOUR: This is a Motion opposing the production of some material in answer to a Subpoena on the basis of public interest immunity. 2. I have remarked during the course of the proceedings in relation to a Motion now before the Court that the Court in these circumstances is always in a slightly awkward position and, I have to say, there ought to be a process available whereby at least a representative, even if it be one who is approved by relevant authorities and separate from the representatives of the accused during the course of the trial, ought to have available to them the capacity to deal with particular documents that are otherwise not being seen. 3. That is how it is sometimes dealt with in some of the terrorism matters and it is a process that, while cumbersome, is better than having the accused feel as if they are being denied the capacity to look at documents and address issues raised. 4. I have not yet described the fact that the Motion before the Court is a Motion to set aside paragraph 6 of the Subpoena served by short service recently dealing with other material produced or recounted by Witness E in relation to the murder of the deceased in this trial. I have had the benefit of looking at the material produced. The material produced is not a complete production, in the sense that there may be other documents, and it is likely that there are other documents, in the sense defined for the purposes of subpoenas, that would fit the description in paragraph 6. 5. It seems to me that those other documents, if and when they become available, ought to be produced and I can rule on them separately. The other documents that may exist or are likely to exist probably fit within that which Mr Djemal has described more than the documents that are before me now. 6. The documents that are before me now, as earlier stated, are such that their disclosure may adversely impact the safety of Witness E and I accept the submission that was made on that basis on behalf of the Commissioner of Police, who is the applicant on the Motion and the addressee on the Subpoena. 7. In and of itself, that would give rise to an issue of public interest immunity, but it seems to me from the principles that I have described in the earlier judgments in this matter and in other matters, that it is always a question of balance. As earlier stated during the course of these proceedings today, none of the material is either inculpatory of the accused or exculpatory of the accused. If it fitted within either one of those categories, it would seem to me to warrant a different assessment, although not necessarily a different result. But their probative value would be significantly different. 8. Similarly, it is not part of any investigation or suggestion that any other person murdered, or was involved in the infliction or injection of material that killed the deceased in this trial. 9. Nor, I hasten to add, is it material that would, on its face, adversely impact the credit of Witness E. I include in that, adversely impact even on the basis as suggested by Mr Djemal. On the contrary, if it were to have any effect on the credit of Witness E, and that is the question that is posed by ss 55 and 56 of the Evidence Act 1995 (NSW), it would be, albeit marginally, to bolster the credit of Witness E in terms of whether conversations were inaccurately described or described in a way which sought to implicate one or more persons in the guilt associated with this crime. 10. Having said that, that may not be the position or situation relating to further material that may be found, and the Commissioner has openly said that the expectation is there is such material, but it hasn't yet been found. That is why I ruled earlier that when material is found, it should be produced to the Court and the Court can rule on that material. It may be that the ruling will be the same, it may be different. It would depend upon the material. 11. But, having seen the material and assessed that, taking the best possible view of it from the point of view of the accused, it would not assist the accused either in the cross-examination of Witness E or, indeed, otherwise in the terms of their case, it seems to me that the appropriate course is to allow the public interest immunity on the basis of the safety or adverse impact risk to Witness E and I so rule. The documents provided to the Court need not be produced in answer to paragraph 6 of the Subpoena.