New South Wales District Court CITATION: R v Dowe [2007] NSWDC 70 HEARING DATE(S): 19/04/2007 JUDGMENT DATE: 19 April 2007 JURISDICTION: Criminal JUDGMENT OF: Murrell SC DCJ DECISION: Application to set aside subpoena dismissed CATCHWORDS: Subpoena - Public Interest Immunity - Management Committee of NSW Crime Commission s130(4)(f) of the Evidence Act 1995 s130 (1) of the Evidence Act 1995 LEGISLATION CITED: New South Wales Crime Commission Act 1985 s24 & s25 of the New South Wales Crime Commission Act 1985 225(1) of the New South Wales Crime Commission Act 1985 Conway v Rimmer [1968] AC 910 at 952 CASES CITED: Howard and Treasurer of Commonwealth of Australia (1985) ALD 626 at 634 Alister v the Queen (1984) 154 CLR 404 Crown PARTIES: Crime Commission of NSW David Darley Dowe FILE NUMBER(S): 06/11/0348 COUNSEL: Mr D Staehli (Crown) Mr I Temby QC (Crime Commission of NSW) SOLICITORS: Mr R Mayne (Accused) JUDGMENT 1 The New South Wales Crime Commission applies to the Court for an order that a subpoena be set aside insofar as it seeks the production of minutes of Management Committee meetings of the Commission. The meetings on 14 February, 2005 and 21 March, 2005 are in question. 2 I have had access to the minutes. 3 The Commission concedes that the subpoena has a legitimate forensic purpose. Put simply, the purpose in question is to investigate whether, in approximately February 2005, the Australian Federal Police (which is represented on the Management Committee) was operating "in the dark" in relation to Operation Gymea; whether the AFP was aware that, under the controlled Operation, there was every chance that cocaine would be sold into the market and would reach end users. In other words, whether the AFP knew that, under the Operation, a large quantity of the cocaine would be consumed by members of the public. 4 As far as this application is concerned, the first real issue is what has been termed a "class argument". The Commission contends that, as a class, minutes of meetings of it's Management Committee are documents which "relate to matters of state" within the meaning of s130(4)(f) of the Evidence Act 1995 in that their disclosure would prejudice the proper functioning of the government of New South Wales. 5 If I determine the class argument in favour of the Commission, the Commission argues that, in relation to the subject minutes, I would not be satisfied pursuant to s130(1) of the Evidence Act 1995 that: " If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document." 6 Although s130 is concerned with the admission into evidence of material in relation to which public interest privilege is claimed, it is agreed that virtually identical considerations apply when considering the production and inspection of such material. That is, the considerations which apply at the pre-trial level are virtually identical to those which apply at the trial level. 7 In relation to the class argument, the Commission relies on the terms of the New South Wales Crime Commission Act 1985 and on an affidavit of Phillip Bradley, the Commissioner. 8 The Management Committee is a small group of individuals who hold the most senior positions in relation to criminal investigations in New South Wales. It is constituted under s24 of the Act and consists of four members. Section 24 states: " (1) There is constituted by this Act a New South Wales Crime Commission Management Committee consisting of 4 members of whom: (a) one shall be the Minister for Police, and (b) one shall be the Commissioner of Police, and (c) one shall be the Chair of the Board of the Australian Crime Commission, and (d) one shall be the Commissioner, or any person acting in such office." 9 The functions of the Management Committee are set out in s25 and following of the Act. The first matter to which s25(1) refers is: "(a) to refer (by a written notice) matters relating to relevant criminal activities to the Commission for investigation." Under s27, the Management Committee may give directions and furnish guidelines to the Commission with respect to the exercise of it's function. Conversely, under s30, the Commission is required to keep the Management Committee informed of the general conduct of its operations. 10 The first question is: How would disclosure of the minutes of a meeting of the Committee, "prejudice the proper functioning of the government" of New South Wales? Classically, the type of document which, as a class, falls within s130(4)(f) of the Evidence Act is Cabinet minutes. The reason is that Cabinet minutes involve policy discussions and decisions at the highest level of government. In Conway v Rimmer [1968] AC 910 at 952 cited with approval in Re Howard and Treasurer of Commonwealth of Australia. (1985) ALD 626 at 634, Lord Reid said: "Virtually everyone agrees that Cabinet minutes and the like ought not to be disclosed until such time as they are only of historical interest. But I do not think that many people would give as a reason that premature disclosure would prevent candour in the Cabinet. To my mind the most important reason is such disclosure would create or fan ill - formed or captious public or political criticism. The business of government is difficult enough as it is…..." 11 The affidavit of Mr Bradley advances as an important reason that the minutes fall within s130(4)(f), that the disclosure of such minutes would: "Inhibit full and frank discussion between the members of the Committee and the development of high level law enforcement policy..." 12 However, as Lord Reid indicated, the suppression of candour is generally not regarded as a determining consideration when characterizing such documents. As far as the inhibition of policy development is concerned, the functions of the Management Committee are largely operational rather than in the field of policy development. It is true that its deliberations are confidential and highly sensitive in relation to both operational and policy matters, but it is, essentially, a committee which manages operations as much, if not more than, a committee which determines high level policy. 13 The Commission sought to draw an analogy between the documents which were protected in Re Howard and those in the present case. I do not agree that there is a valid analogy. The documents in Re Howard were the subject of a freedom of information application. The relevant characterization did not involve s130(4)(f). Rather, it was a question of whether the document fell within s36(1)(a) of the Freedom of Information Act 1982, a very different provision. Further, the documents in question were closely related to important Cabinet deliberations. That observation does not apply to the class of documents constituted by the minutes of the Management Committee of the Commission. 14 One cannot say that the disclosure of the minutes of the Management Committee as a class would prejudice the proper functioning of the government of New South Wales. It may well be that the disclosure of certain parts of such minutes would fall foul of s130(4)(f), but I am very far from persuaded that the disclosure of such minutes as a class would fall foul of that provision. 15 As I have determined the "class argument" against the Commission, strictly speaking it is not necessary for me to consider the exercise of discretion by analogy with s130(1) of the Evidence Act 1995, but I will make a few observations. 16 These are criminal proceedings in relation to very serious crimes, so the Court would be more inclined to grant access to the documents than would be the case with civil proceedings. 17 I accept the submissions of Mr Mayne for the accused/respondent that, as the proceedings are criminal proceedings the Court would be more likely to permit access to the extent that the documents have a material bearing on an issue in question, whether or not, in bearing on that issue, the documents support or undermine the accused's position on the issue. In this regard, the observations of the High Court in Alister v The Queen (1984) 154 CLR 404 are relevant. 18 Insofar as it advances a class argument the application to set aside the subpoena is dismissed. I understand that both the Commission and the Australian Federal Police object to production of particular parts of the minutes. ********** 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.