Drug Court of New South Wales CITATION : R v Shannon JOHNSTON [2010] NSWDRGC 3 PARTIES : Crown Shannon JOHNSTON (Offender) FILE NUMBER(S) : 11 of 2010 CORAM: His Honour Senior Judge Roger Dive CATCHWORDS: Meaning of Eligible Person :- report of multi-disciplinary team – provision of confidential information – claim of public interest immunity by Commissioner of Corrective Services – provision of open and confidential affidavits – balancing the public interests – access to information by offender and/or the court – good order and security in correctional centres LEGISLATION CITED: Drug Court Act 1998 Evidence Act 1995 Nicopoulos v Commissioner for Corrective Services (2004) 148 A Crim R 74; CASES CITED: Cain v Glass (No 2) (1985) 3 NSWLR 230; D v National Society for the Prevention of Cruelty to Children [1977] 1 All ER 589; DPP v Smith (1996) 86 A Crim R 308 DATES OF HEARING: 1 September 2010 DATE OF JUDGMENT: 1 September 2010 R Atkins, Director of Public Prosecutions LEGAL REPRESENTATIVES: R Bhalla, Commissioner of Corrective Services W Tuckey, Legal Aid Commission (Offender) JUDGMENT: Background 1. The offender, Shannon Johnston, was sentenced in the Sydney District Court for the offence of Robbery in Company. He was sentenced to a non-parole period of 3 years and a total term of imprisonment of 5 years. The sentencing judge referred him to the Drug Court for the consideration of a Compulsory Drug Treatment Order (CDTO). 2. There is no dispute that he is an "eligible convicted offender" as defined in s. 5A of the Drug Court Act 1998 ("the Act"). The Court must now decide as to whether he is a "suitable" person for a CDTO, and therefore whether such an order should be made under s 18D within Pt 2A of the Act. The Court must not make such an order without first referring an offender to the multi-disciplinary team for assessment, and having regard to its contents. That assessment has been provided. 3. In its report, the multi-disciplinary team (MDT) made certain findings and recommendations, the effect of which was that Mr Johnston was assessed as not being a suitable person for compulsory drug treatment. Essentially, the MDT raises the concern that Mr Johnston committed an assault against a prisoner with a current CDTO, and there is what is described as an "inactive non-association alert" from that incident in 2007. 4. Mr Johnston has instructed his solicitor that he denies any such assault, and sought details of the allegation so he could respond to it. At an earlier mention hearing of this matter the Court asked as to whether further information about the incident could be provided, so as to allow Mr Johnston to respond to the allegation, and to also allow the Court to make an assessment as to his suitability for a CDTO. 5. The Commissioner of Corrective Services has been granted leave to appear in these proceedings in relation to the question of providing the information requested. 6. In general terms, the Commissioner seeks to inform the court of information concerning Mr Johnston, but strenuously opposes Mr Johnston having any access to that information. Indeed, if the court were to rule against the Commissioner in relation to allowing Mr Johnston access to the material, the affidavits would be withdrawn. 7. The Commissioner seeks to provide the information on a confidential basis to the presiding Judge alone, on two bases: that the exercise that the Court is undertaking is administrative in nature, and the rules of procedural fairness have elided to nothing or almost nothing; or, in the alternative, that the principles of public interest immunity mean that it would be injurious to the public interest for the information requested to be disclosed beyond the presiding Judge. 8. On the last occasion the matter was before the Court, Mr Tuckey, for Mr Johnston, conceded the public interest immunity (PII) argument, subject to still seeking an opportunity for Mr Johnston to reply, even without any confidential information having been disclosed to Mr Johnston. Mr Bhalla, who appeared for the Commissioner, was content to rely on the PII argument alone. Therefore I do not need to determine the first argument, that is, the nature of the proceedings before the Drug Court, and thereby the extent to which they are merely administrative in nature, and thereby make findings as to the scope of s 26(3) of the Drug Court Act 1 on this issue. 9. I am grateful to Mr Tuckey for his well-founded concession regarding PII. Despite that, there is a need to set out some findings on the issue. 10. Three affidavits have been provided to the court, two of which are confidential. The first affidavit is the confidential affidavit of Dr. Astrid Birgden, the Director of the CDTCC, and the others are an open affidavit and confidential affidavit of Rosemary Caruana, the Regional Executive Director of the Metropolitan Region of Corrective Services. 11. Mr Johnston has written two letters, which essentially deny any assault which would see him unable to do the program, his distress as to a lack of success in recovery from drug addiction in the past, and expressing his commitment and motivation to address his addiction, and to becoming a good father to his children. Public interest immunity 12. The Commissioner claims public interest immunity over the information contained in Dr Astrid Birgden's confidential affidavit. The basis for the claim is that the release of the information would prejudice the good order and security of the Compulsory Drug Treatment Centre. 13. As Mr Bhalla noted, a claim of public interest immunity is usually a form of objection to evidence being adduced or to the production of documents sought, however in this case the Commissioner asks the Court to uphold the PII claim, and either receive Dr Birgden's affidavit into evidence or, at least have regard to her affidavit when coming to its decision. The Commissioner also relies upon the affidavits of Rosemary Caruana. 14. Public interest immunity is immunity from the production of documents or disclosure of information, where such production or disclosure would be against the public interest. There is no dispute that the Commissioner is a person who may seek such immunity. As Mr Bhalla submitted, the common law principles of public interest immunity have now found statutory expression in s. 130 of the Evidence Act 1995, which is of course relevant, even though this Court is not bound by the rules of evidence in some proceedings. 15. I agree with Mr Bhalla's submission that, in determining whether or not to allow a claim of public interest immunity (whether at common law or pursuant to s. 130), the Court must balance the public interest in withholding the disclosure of information or the production of a document, against the public interest in ensuring that courts performing the functions of justice (including the parties before the courts) have access to relevant evidence. 16. Mr Bhalla, in my view correctly, argues that there is a three stage process to be followed: first, determining whether the evidence sought to be obtained is material; second, establishing that there is a sound basis for the claim of immunity; third, the balancing exercise. In this case, it is of course argued by the Commissioner that the information or evidence is material—it is he who seeks to adduce it. 17. The court's attention has been drawn to the decision in Nicopoulos v Commissioner for Corrective Services (2004) 148 A Crim R 74, where the Supreme Court recognised that it is possible for a claim of public interest immunity to be upheld, but for the court to still have regard to the evidence over which the claim was made. In that case a solicitor, Mr Nicopoulos, was prevented by the Commissioner from entering any correctional centre. Mr Nicopoulos sought to have that decision reviewed, and the court held that the Commissioner could rely on secret intelligence, and that the court could both receive and consider confidential evidence. Maintenance of order and security in correctional centres 18. Mr Bhalla argues that the information that this Court is presently concerned with is such that, if it were released, it would be liable to adversely affect the good order (and therefore security) of the facility in question. He argues that the courts have recognised that there is a particularly strong public interest in protecting the identity of informers, and that the reasoning behind what has come to be known as the "informer rule" was explained by McHugh JA in Cain v Glass (No 2) (1985) 3 NSWLR 230 at 247—248: "The justification for the exalted position of the informer rule in the spectrum of public interest immunity is that, unless the anonymity of informers is protected 'the flow of intelligence about planned crime or its perpetrators' will stop: D v National Society for the Prevention of Cruelty to Children 2 (at 232) per Lord Simon of Glaisdale. Although the need to protect the safety of informers may have played a part in creating the principle, the existence of a threat to the informer is not a condition precedent to its operation. The paramount position of the informer rule produces the result in civil proceedings that the identity of an informer in a criminal case is not admissible in any circumstances … … The rule is absolute and is relaxed only 'where upon the trial of a defendant for a criminal offence disclosure of the identity of the informer could help to show that the defendant was innocent of the offence." Evidentiary issues 19. In this matter, the court is being asked to consider confidential evidence in the form of a confidential affidavit which is provided for the perusal of the judge alone. Mr Bhalla has drawn this courts attention to the decision of the Court of Appeal in DPP v Smith (1996) 86 A Crim R 308, and the established procedure whereby confidential affidavits provide detailed evidence and also advance reasons in support of the immunity claim. Conclusions 20. Having considered the written and oral submissions, and the letters provided by Mr Johnston, the following decisions and orders will be made: 1) The material provided is relevant to the question to be decided by the court and is important information regarding the issues as to whether Mr Johnston is a suitable person for a CDTO. All appropriate steps should be taken to ensure correctional centres are as safe as possible for all involved. Further to that, the CDTCC has been established as a program which promotes a non-violent correctional facility, and is not physically structured to accommodate violence or threats of violence between participants. For example, the availability of separate cells is severely limited, and there are no provisions for prisoners to be on "protection" from one another. 2) The material provided can be and should be considered by the court on a confidential basis. PII is conceded, and the application that the Judge alone consider the information is upheld. In my view it would be very difficult for the Court to come to the affirmative view required in Section 18D(1)(b) of the Drug Court Act 1998 that Mr Johnston was a suitable person if the Court knew that there was (allegedly) important relevant information available, but then chose to turn its back to knowing what that information was. 3) The Court must balance the competing interests of justice in this matter, and in my view the balance lies in not disclosing the information to Mr Johnston. It would not assist in the maintenance of good order and discipline in the gaol system as a whole if it was disclosed, and its disclosure could place others, including staff, in danger. 4) Further, I do not propose to provide Mr Johnston with any opportunity to give oral or other evidence today. The only live issue before the Court is the issue revealed in the confidential information, and Mr Johnston has maintained throughout that he does not know anything of such an incident. There is no purpose in bringing him to the witness box to say that. Further, the Court has already received Mr Johnston's letters wherein he expresses his motivation and commitment towards the opportunity of a place at the CDTCC. 5) The matter will be determined to finality today. There was a suggestion that the issue could be left until next year to allow the principal issue of concern to resolve itself by virtue of the other prisoner leaving the CDTCC. However I am of the view, after considering the MDT report and the confidential information, that Mr Johnston is not a suitable person for the CDTCC in any event. He has a significant history of violence in both his criminal history and his custodial history. His history of violence starts at a young age, and involves serious violence, including using a weapon to prevent lawful detention. His violent behaviour in custody is not limited to the matter which was the focus of the PII application. 21. Given the evidence before this Court, I cannot be satisfied that Mr Johnston is a suitable person for a CDTO, or that it is appropriate in all the circumstances that his sentence be served by way of Compulsory Drug Treatment Detention. ********** 1 S 26 provides that "[t]he Drug Court is not bound by the rules of evidence, but may inform itself on any matter in such manner as it considers appropriate."…) 2 [1977] 1 All ER 589 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.