New South Wales District Court CITATION: R v Kashif BILAL [2010] NSWDC 328 JUDGMENT DATE: 9 November 2010 JURISDICTION: District Court of New South Wales JUDGMENT OF: Cogswell SC DCJ DECISION: Refer to [27] CATCHWORDS: CRIMINAL LAW - notice of motion - Commissioner of Police seeking subpoenas issued by defence be set aside on the ground that they are an abuse of process, or to be excused from producing documents sought by subpoena on grounds of public interest immunity - sexual assault - solicit to murder - plea of guilty - question of legitimate forensic purpose - question of whether harm to public interest outweighs public interest in defence having access to documents to conduct case - application of s 130 of Evidence Act 1995 LEGISLATION CITED: Evidence Act 1995 s 130, s 131A PARTIES: Regina Kashif Bilal FILE NUMBER(S): 2009/230218; 2009/329212 COUNSEL: Mr Gibson for Director of Public Prosecutions Ms Kumar for Commissioner of Police SOLICITORS: Mr Sandilands for Mr Bilal JUDGMENT 1. Kashif Bilal has been charged with three serious offences. Two of them are sexual assaults against a named person. The third is a charge of soliciting to murder the victim of the sexual assault. Mr Kashif Bilal has pleaded guilty to all three charges. He did so yesterday when Mr Gibson as Crown Prosecutor presented the indictment against him and I have convicted him of those three charges. 2. Mr Gibson also tendered as part of his case a number of documents which became exhibit A. Amongst those documents is a document tabbed 9. That document is a statement by a person whose identity is not disclosed. All references to means of identifying the author of that document have been removed from the statement. It is apparent from the statement that the author was a prisoner in custody at the same time and in the same prison as Mr Bilal. It is also apparent from the statement that the author gives an account of various conversations with Mr Bilal which could form the basis of the charge for solicit to murder. 3. Mr Sandilands who represents Mr Bilal has arranged for the court to issue two subpoenas for production. Mr Sandilands, from his client, has instructions about a person who Mr Sandilands expects is the author of the statement in exhibit A. In the first subpoena for production, which was issued on 29 October 2010, Mr Sandilands sought the following documents from the Commissioner of Police: "details of information provided by source (believed to be prisoner) in relation to matters other than Bilal, in particular the number of times this information has been provided and resulted in benefits to source." 4. The second subpoena Mr Sandilands arranged to be issued on 3 November 2010 and was once again based upon his instructions as to the likely identity of the author of the statement. That subpoena was also addressed to the Commissioner of Police and sought the "criminal history of registered source." Each subpoena provides a number corresponding with the assertion that the subject of the subpoena is a registered source and also provides a specific name. 5. When Mr Bilal's sentence proceedings came on for hearing before me yesterday, Ms Kumar of counsel appeared for the Commissioner of Police in response to the subpoenas which had been issued to him. She filed and addressed a notice of motion; that notice of motion has been substituted today by a further amended notice of motion. She sought orders that both of the subpoenas which Mr Sandilands arranged to be issued be set aside on the ground that they were an abuse of process. Alternatively she sought orders that her client be excused from producing the documents sought by both subpoenas because of a claim made by her client for public interest immunity. 6. I heard both Ms Kumar and Mr Sandilands on the notice of motion yesterday. The notice of motion was supported by an open affidavit of Peter Edward Dein dated 5 November 2010 and a confidential affidavit by the same person who is a police officer, also dated 5 November 2010. 7. In addition there is an exhibit to the confidential affidavit. There was exhibited to the author of the affidavit a folder containing some documents which is called "Confidential Exhibit PED-1". That confidential exhibit apparently contained by oversight more documents which were not strictly in response to the subpoena and Ms Kumar produced on behalf of her client today an envelope which is directly in response to the subpoena issued 29 October 2010. She asked that the contents of that envelope remain confidential for the reasons which her submissions were directed to and I have marked that envelope and its contents MFI 3. 8. I will deal first with Mr Sandilands' subpoena which seeks the criminal record of the person who, I believe, is the author of the statement, tab 9 of exhibit A. SANDILANDS: Your Honour, I'm sorry to interrupt you but with great respect I don't think you can decide that because if you recall - I thought Ms Kumar said that if the subpoena is amended it could be provided and I've had some discussions and-- HIS HONOUR: No, no, I have got to decide this. 9. I will refer to that person as "X". Mr Sandilands wants X's criminal record so that he can cross-examine him on the record. It will be relevant to X's credit argues Mr Sandilands. He is a prisoner serving a sentence so Mr Sandilands argues it must be "on the cards" that there will be something relevant to his credit on the record. He used that expression because Ms Kumar's first basis for objecting to producing the documents was because the issue of the subpoena involved an abuse of process and the basis of that abuse of process was there was no legitimate forensic purpose for access by Mr Sandilands to the criminal record. 10. I accept that the onus is on Mr Sandilands to demonstrate that there is a legitimate forensic purpose for granting him access to the document and secondly to establish that it is "on the cards" that the document will materially assist in his case. 11. Ms Kumar argues that Mr Sandilands was engaged in no more than a fishing expedition and wanted to see the record just to see whether it could be helpful. 12. In my opinion there is a legitimate forensic purpose for Mr Sandilands to arrange for the issue of the subpoena. He wants to call his client to give an account of a conversation his client had with X. That account will be at variance from X's account in some significant respects. Mr Sandilands needs to put his client's account to X who may concede it and make Mr Sandilands' client more acceptable as a witness. If not Mr Sandilands would want to submit that I should reject X's account. One basis for such a submission is potentially the fact that there may be entries in X's criminal record to found the submission regarding his credibility. I think Mr Sandilands has a legitimate forensic purpose, namely to cross-examine X on credit, and also concrete grounds for wanting to inspect the record. The man is after all in prison serving a sentence as a convicted offender. 13. Ms Kumar's alternative argument is that not setting aside the subpoena could implicitly confirm that X is a registered source because of the terms of the subpoena. Ms Kumar on behalf of her client says nothing about whether X is a registered source. Having a court document, namely the subpoena, containing the assertion, true or not, that X is a registered source could obviously put X at risk. I think Ms Kumar is right and I would set aside the subpoena for that reason; or at least I would not require the Commissioner to produce documents in response to the subpoena. 14. There have been discussions between the parties about the issue of a subpoena in terms which would not contain the same problem but which will secure Mr Sandilands the criminal record of X which he needs for the conduct of his case. However, I uphold the Commissioner for Police's objection to producing the documents which are the subject of the subpoena issued on 3 November 2010. 15 I turn now to the subpoena which was issued on 29 October 2010. Ms Kumar says there is no legitimate forensic purpose for the request to issue the subpoena and it is therefore an abuse of process. Alternatively once again she asks that her client be excused from producing the documents because the harm to the public interest in producing them would outweigh the public interest in Mr Sandilands having access to them for the purposes of conducting his client's case. Mr Sandilands' legitimate forensic purpose has a similar basis as his purpose for requiring X's criminal record. 16. Mr Sandilands points to a paragraph in the pre-sentence report which represents his client's position so far as the evidence of X is concerned. By reference to the evidence of X I mean the statement contained at tab 9 of exhibit A. The paragraph which Mr Sandilands refers to is on page 3 of exhibit B in the following terms, " Regarding the offence of 'solicit to murder' the offender claimed that he initially thought he was arranging to 'pay the victim's family off'' as is a common practice in Pakistan. When he realised the full implications of these arrangements he was too scared to withdraw from the situation as he was told 'the same arrangements can be made for you too'. The offender stated that he understood this to mean that they could kill him just as easily as the victim". 17. Mr Sandilands' instructions are that X is a person known to have informed on previous occasions on persons other than his client. His client wants to give an account which Mr Sandilands expects will be consistent with the paragraph in the pre-sentence report. Mr Sandilands wants to cross-examine X about that account. If X agrees then his client's account is more acceptable. If X does not agree, Mr Sandilands wants to explore the possibility of putting to X, consistent with his client's instructions, that X is an experienced prison informer who is able to manipulate other prisoners and who would be prepared to lie in order to secure benefits from informing. That position is consistent with his client's instructions and it seems to me provides a legitimate forensic purpose for seeking the documents by the subpoena. 18. Ms Kumar argued in response that Mr Sandilands is relying only on his client's instructions and that it is speculation without more specificity. I think the instructions are specific enough to pursue that line of enquiry and that it is "on the cards" that the documents, if they exist, could materially assist Mr Sandilands' case. 19 I turn now to Ms Kumar's alternative argument which is that the document should be protected by public interest immunity. Ms Kumar took me to s 130 of the Evidence Act 1995 which is made applicable to pre-trial procedures by s 131A of the same Act. Ms Kumar argues that the documents, without disclosing what they are, relate to what s 130(1) calls "matters of state" in that they may "disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement of a law": s 130(4)(e). Ms Kumar addresses each of the relevant matters referred to in s 130(5), acknowledging of course that they do not limit what I may take into account. Ms Kumar acknowledges that were the documents to show that X had informed on other occasions and been rewarded for such information then they would be relevant to Mr Sandilands line of cross-examination. The party seeking the information in this case is - as the Evidence Act calls him - a defendant which means, it seems to me, that it is more likely that any prejudice flowing from denying the seeking party's request will be visited upon him personally. 20. Ms Kumar acknowledges that the subject matter of the proceedings is very serious; it obviously is. The offence of solicit to murder not only carries a maximum of twenty five years but also has affixed to it a standard non-parole period of ten years. The argument of Mr Sandilands is that it could reduce the credibility of a witness which the prosecution relies upon. One aspect of that witness's account would put Mr Sandilands' client in less favourable light and could be the basis of a submission to support a more severe sentence. The substance, if it has substance, has not already been published except that Mr Sandilands' instructions are that there are rumours to the effect that what he is instructed is contained in the document. 21. As for the likely effect of requiring production of the documents Ms Kumar relies on evidence contained in the confidential affidavit of Peter Edward Dein, especially paras 26 to 32 so far as a likely specific effect and paras 33 to 40 so far as a likely general effect are concerned. Mr Sandilands of course is at a disadvantage because he cannot address a submission to that evidence. 22. I think this last factor, the likely effect of requiring production - the one which Mr Sandilands unfortunately cannot address - is very powerful. The public interest in preserving secrecy or confidentiality is very high for specific and general reasons in this case. The public interest in granting access to Mr Sandilands to the documents is also very high for the specific reasons outlined by Mr Sandilands: his client is facing sentence for an offence carrying a standard non-parole period of ten years and the account of X which he wants to challenge could arguably make the offence more objectively serious and expose his client to the standard non-parole period by depriving Mr Sandilands of evidence elicited in cross-examination which might reduce the objective seriousness of the offence. 23. However the other public interest, insofar as it is specific, is very serious for an individual - more so than increased gaol time - and far reaching so far as the administration of justice is concerned, as a general public interest. 24. Each choice results in a damage to the public interest. I would regard the damage of disclosure as more significant. In my opinion - in the terms of s 130(1) - "the public interest" in requiring the Commissioner for Police to produce the documents "is outweighed by the public interest in preserving secrecy or confidentiality" in relation to the document. 25. Accordingly I do not require the Commissioner for Police to produce documents in response to the subpoena issued on 29 October 2010. 26. If X is called, and Mr Sandilands indicates that he proposes to call a person he expects is X, it is anticipated that Mr Sandilands' efforts to cross-examine him will be further resisted on behalf of the Commissioner for Police. I will deal with that at the time. However I indicate that I will hear Mr Sandilands and Mr Gibson on any allowance I should make in assessing Mr Sandilands' submissions because of his inability to have access to documents, the documents he seeks, and because of any further restriction on his cross-examination of X. 27. They are my reasons. So the orders which I make are – 1. I grant leave to file a further amended notice of motion in court today. 2. I note that the earlier notice of motion filed in court pursuant to leave yesterday was returnable instanter as is the further amended notice of motion. 3. I refuse orders 4 and 5 in the further amended notice of motion. 4. I grant order 6 in the further amended notice of motion. 5. I grant order 6A in the further amended notice of motion. ********** 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.