Supreme Court New South Wales Medium Neutral Citation: R v Bushell; R v Tozer (No 12) [2023] NSWSC 1448 Hearing dates: 26-28, 31 July, 1-4, 7-10, 14 August 2023 Decision date: 14 August 2023 Jurisdiction: Common Law Before: Rothman J Decision: The Commissioner's claim for confidentiality and public interest immunity in relation to Witness E is upheld. Catchwords: EVIDENCE – public interest immunity – safety of witness – immunity upheld – disclosure not required 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: Last week I set out the principles that I applied in relation to public interest immunity. I do not repeat them. I merely adopt them by reference. It seems to me that it is still a three-step process and I have to deal with it. There can be little doubt of the credit worthiness and/or reliability of Witness E is a matter of substantial importance in the proceedings before the Court. At the moment, the parties are aware of some of the material that witness E has given to the police otherwise than directly or relevant to the two accused. 2. The issue associated with confidentiality or public interest immunity in relation to this material has not been the methodology of the police, but rather to the safety of the witness. Having read the material, I accept that there are serious issues associated with the safety of the witness and at least in terms of the first step, uphold public interest immunity. In relation to the second and third steps, without disclosing any of the contents of the confidential material and apart from the use of methodology to which Mr Djemal referred, there is no material arising from that which is either inculpatory or exculpatory of either of the accused or of Mr Hudson. 3. As a consequence, it seems to me that the balance lies heavily towards the safety of the witness on the material that I have read and I do not consider that it is necessary or appropriate to disclose any of the material between the parties. I make it clear that if during the course of cross-examination of Witness E an issue arises which counsel feels requires some detailed disclosure of the role of Witness E, I will hear a further application in relation to that. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 November 2023