Local Court of New South Wales CITATION: CDPP V Ayad [2004] NSWLC 7 JURISDICTION: Criminal Commonwealth DPP PARTIES: Fahdi Ayad Commissioner of Police FILE NUMBER: PLACE OF HEARING: Blacktown and Parramatta Local Courts DATE OF DECISION: 03/19/2004 MAGISTRATE: CATCHWORDS: Evidence, Public Interest Immunity, informer immunity, informer's identity disclosed, application to suppress evidence as to payments to informer by police LEGISLATION CITED: Evidence Act 1995 (NSW) s 130 AG V Kaddourt & Turkmani [2001] NSWCCA 456 AG v Stuart (1994) 34 NSWLR 667 Cain v Glass (No 2) (1985) 3 NSWLR 230 Carnduff v Rock and Another UKCA:Waller, Laws and Jonathan Parker LJJ:11 May 2001 Cerrah v R (unreported, Full Court Victoria, 6 October 1988) Eastman v R (1997) 158 ALR 107 Esso Australia Resources ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 Fandakis [2002] NSWCCA 5 Jarvie v The Magistrates Court of Victoria [1995] 1 VR 84 CASES CITED: Marks v Beyfus, 25 Q.B.D 494 National Society for the Prevention of Cruelty to Children [1978] AC 171 R v Le Boursicot (1994) 79 A Crim R 548 R v Mason [2000] SASC 161 R v Meissner (1994) 76 A Crim R 81 R v Smith (1996) 86 A Crim R 308 RTA v Connolly [2003] NSWSC 327 Sankey v Whitlam (1978) 142 CLR 1 Savage v Hoddinott (Chief Constanble of Hampshire) [1997] EWCA Civ 943 State of NSW v Ryan Unreported 2 Sep 98 Young (1999) 46 NSWLR 681 Commissioner of Police - Applicant REPRESENTATION: Commonwealth DPP - Prosecutor Fahdi Ayad ORDERS: Direct that no evidence may be adduced as to the specific occasions on which, or matters in respect of which, the witness received money from the police. This direction is given on condition that the Commissioner pay the costs of the Crown in right of the Commonwealth, and of the defendant, for the days taken up, wholly or substantially, with this application. 1. I have been requested by the Crown on behalf of the Commissioner of the NSW Police to give a direction under s 130(1) of the Evidence Act 1995 preventing the adducing of certain evidence. S 130 provides: 130. Exclusion of evidence of matters of state (1) 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, the court may direct that the information or document not be adduced as evidence. (2) The court may give such a direction either on its own initiative or on the application of any person (whether or not the person is a party). (3) In deciding whether to give such a direction, the court may inform itself in any way it thinks fit. (4) Without limiting the circumstances in which information or a document may be taken for the purposes of subsection (1) to relate to matters of state, the information or document is taken for the purposes of that subsection to relate to matters of state if adducing it as evidence would: (a) prejudice the security, defence or international relations of Australia, or (b) damage relations between the Commonwealth and a State or between 2 or more States, or (c) prejudice the prevention, investigation or prosecution of an offence, or (d) prejudice the prevention or investigation of, or the conduct of proceedings for recovery of civil penalties brought with respect to, other contraventions of the law, or (e) disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State, or (f) prejudice the proper functioning of the government of the Commonwealth or a State. (5) Without limiting the matters that the court may take into account for the purposes of subsection (1), it is to take into account the following matters: (a) the importance of the information or the document in the proceeding, (b) if the proceeding is a criminal proceeding---whether the party seeking to adduce evidence of the information or document is a defendant or the prosecutor, (c) the nature of the offence, cause of action or defence to which the information or document relates, and the nature of the subject matter of the proceeding, (d) the likely effect of adducing evidence of the information or document, and the means available to limit its publication, (e) whether the substance of the information or document has already been published, (f) if the proceeding is a criminal proceeding and the party seeking to adduce evidence of the information or document is a defendant---whether the direction is to be made subject to the condition that the prosecution be stayed. This section provides a statutory framework for what is known as "public interest immunity". 2. I note that s 130 gives the court a discretion whether to give the direction sought or not. However, it is clear from the section and later authority that if the court finds the balance in favour of the Crown, the direction must be given. Further, the direction, if given, may be given on such terms as the court thinks fit (S 192 EA). 3. In the present proceedings, however, I am bound by an order of Dowd J not to disclose the contents of the confidential affidavit to anyone, and I will conscientiously comply with his Honour's order. This omnibus order has some significant implications for these proceedings. Public Interest Immunity at Common Law A. Rationale for Informer Rule 4. There is a great deal of authority on the concept and operation of common law public interest immunity, and the subject has been recently closely re-examined in the context of police informers in the decision of the South Australian Court of Criminal Appeal in R v Mason1. [2000] SASC 161, Bleby J delivering the judgment of himself, Doyle CJ and Mullighan J. His Honour noted that, "21. The rule and its rationale are adequately described by Lord Diplock in D v National Society for the Prevention of Cruelty to Children [1978] AC 171 at 218: "The rationale of the rule as it applies to police informers is plain. If their identity were liable to be disclosed in a court of law, these sources of information would dry up and the police would be hindered in their duty of preventing and detecting crime. So the public interest in preserving the anonymity of police informers had to be weighed against the public interest that information which might assist a judicial tribunal to ascertain facts relevant to an issue upon which it is required to adjudicate should be withheld from that tribunal. By the uniform practice of the judges which by the time of Marks v. Beyfus , 25 Q.B.D. 494 had already hardened into a rule of law, the balance has fallen upon the side of non-disclosure except 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. In that case, and in that case only, the balance falls upon the side of disclosure." … 29. …Kirby P (as he then was) in Cain v Glass (No 2) (1985) 3 NSWLR 230 at 233 - 234 considered that defence of the particular witness formed part of the rationale for the rule. He said: "In the case of police informers, rules have developed, over many years, to protect the confidential basis upon which police deal with such informers. In part, this is for the defence of the particular witness involved. In part, it is to ensure a continuing flow of helpful information from such a witness. In part, it is to reassure the many other persons who, formally and informally, provide useful information to the police." 30. On the other hand, McHugh JA (as he then was) said (at 247): "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 (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." 5. It is settled law in NSW that s 130 (and other more general concepts of public interest immunity) are only concerned with the exercise of governmental functions: Young (1999) 46 NSWLR 681 (CCA) per Spigelman CJ at 693-4. His Honour there remarked," "Public interest immunity arises because of 'the need to safeguard the proper [694] functioning of the executive arm of government and of the public service.' (emphasis added), to use the formulation which Stephen J in Sankey v Whitlam (at 56) described as 'the reasons customarily given' for the immunity. This formulation was adopted by Mason CJ, Brennan J, Deane J, Dawson J Gaudron J and McHugh J in Commonwealth v Northern Land Council (1993) 176 CLR 604 at 619, and described by their Honours as 'the ordinary reasons supporting a claim for public interest immunity." B. Element of Confidentiality 6. To quote further from the judgment of Bleby J, "26. Given the rationale for the rule, namely the preservation of anonymity, there must be present an element of confidentiality in the identity of the informer. This was implicitly recognised by the New South Wales Court of Criminal Appeal (Gleeson CJ, Clarke and Sheller JJA) in R v Smith (1996) 86 A Crim R 308 at 311: "The fact that one person provides information to another in confidence does not of itself mean that disclosure of such information may not be compelled in legal proceedings. The private interest in confidentiality yields to the public interest in the due administration of justice.... The rationale of this form of public interest immunity is that, if it were not extended, sources of information would dry up and the prevention and detection of crime would be hindered." 25.It is only the assurance of confidentiality of the identity of the informer that prevents the valuable sources of information from drying up. Is it sufficient if a person merely expresses a desire that his or her identity remain confidential, or must it be a condition of the giving of the information that the informer's identity remains confidential? The rationale for the immunity requires that there be protection of actual confidences, or of information given in confidence. That means, on a true analysis, that the immunity will only protect the identity of a person where the information is given upon condition that the confidence is honoured and that the person's identity will not be disclosed, or upon an assurance by the recipient that that will be the case. Anything less would seem not to be justified by the rationale for the immunity." C. Test of When Disclosure Warranted "44. The matter was discussed at some length by Brooking J, speaking for the Victorian Court of Appeal, in Jarvie v The Magistrates Court of Victoria [1995] 1 VR 84. Having referred to the tests in the English cases mentioned above and to what Gibbs ACJ said in Sankey v Whitlam (1978) 142 CLR 1 at 42 ("necessary to support the defence of an accused person"), he said (at 89): "But, while the court will no doubt allow the identity of an informer to be disclosed only after the most anxious consideration, the expressions I have cited, and other similar words, were in my view not intended to convey that disclosure is warranted only where it is clear that the result must be to demonstrate that the accused is not guilty. So in Cerrah v. R. (unreported, Full Court, 6 October 1988) Vincent J., speaking in effect for the court, said: 'It is, in my view, clear that before what appears to be a legitimate claim against the disclosure of the name of a police informer is rejected, the accused must demonstrate that the evidence is at the very least capable of being, if not likely to be, of some real assistance to him in answering the case made out against him . A speculative possibility of the kind for which the present applicant contends would certainly not suffice.' I doubt whether this test is significantly different to that mentioned by Wilson and Dawson JJ. and Brennan J. in Alister v. R. at 438 and 456 (a likelihood of the obtaining of material substantially useful to the accused). The test laid down by Vincent J. is capable of being applied not only on a trial but also in committal proceedings. I would respectfully suggest that the words 'is at the very least capable of being, if not likely to be, of some real assistance to him' should be understood as requiring it to be demonstrated that there is good reason to think that disclosure of the informer's identity may be of substantial assistance to the defendant in answering the case against him . I should add that I respectfully doubt whether McHugh J.A. (as he then was) in Cain v. Glass (No. 2) (1985) 3 N.S.W.L.R. 230 intended to lay down any substantially different test to that which I have attempted to formulate. The fact that there is good reason to think that disclosure of the informer's identity may be of some slight assistance to the defence is not sufficient to outweigh the public interest in non-disclosure. The balancing process accepts that justice, even criminal justice, is not perfect, or even as perfect as human rules can make it. But once it is demonstrated that there is good reason to think that non-disclosure may result in substantial prejudice to the accused, the balance has been shown to incline in his favour and disclosure should be directed." [Emphasis added] 45. That formulation was adopted by the New South Wales Court of Criminal Appeal in R v Meissner (1994) 76 A Crim R 81, Carruthers J at 88. I too am happy to adopt that formulation." D. Test of impact of disclosure 7. Meissner was, of course, decided in 1994. So what is the test following the commencement of the Evidence Act 1995? In Fandakis2. [2002] NSWCCA 5, Barr J delivering the judgment of the court commented, "49. From the material and an examination of Senior Constable Zoras' notebook it was plain that the question asked was likely to elicit an answer which would tend to identify the informer. Some persons would immediately know who the person was and others may with further information be able to find out. At the very least the answer was likely to provide significant information which, together with other information, could be used to identify the informer ."[emphasis added] 8. With the greatest respect, this dictum cannot be literally correct. Almost any information relevant to a person's past actions or personal attributes will, "with further information", "tend" to identify that person. To say that the person is male automatically eliminates 50% of the possible contenders. And since it is impossible to know what "further information" a person acquiring the particular information might already have (for example, there are 100 possibilities, but only one of them is male), absolutely any piece of new information might serve to complete the picture and "tend" to identify the witness. If this test is applied, there will never be a situation where a question in relation to any aspect of an informer's identity or past actions would be permitted. 9. To quote from Sully J in A-G v Kaddour & Turkmani3. [2001] NSWCCA 456 , "investigating police are concerned that an answer to these questions may lead to a process of elimination whereby civilians who acted as informers and assisted police in their investigations would be identified thereby exposing them to reprisals and threats to their personal safety and that of their families." Such a process of elimination can never be totally prevented. Whilst such concerns should never be ignored, they need some more substantial support before they can be used to deny to an accused a legitimate avenue of information gathering that may assist his or her defence to a serious criminal charge. 10. Perhaps the first part of the dictum is meant to be qualified by the third sentence of the passage quoted, so that, before being objectionable on public interest immunity grounds, the particular question must be likely to provide "significant information", although that does not seem to provide a particularly meaningful or useful test. 11. It seems to me that one must fall back on the express requirements of s 130 of the Evidence Act 1995, and apply the tests set out therein, ie is "the public interest in admitting into evidence information … that relates to matters of state … outweighed by the public interest in preserving secrecy or confidentiality in relation to the information…"? That Act does not expressly differentiate between public interest immunity matters relating to police informers, and public interest immunity matters of other types, and it seems that there is no warrant for the introduction of special tests outside the statutory framework for particular types of sensitive information. 12. To indicate whether or not, based on the information supplied by police, the defendant's assertions are well- or ill-founded, would necessarily disclose, by implication, some of the contents of the confidential affidavit tendered in these proceedings, and that course is foreclosed by Dowd J's order. It could also entail unquestioning acceptance of the untested material contained in that affidavit, and that is not a course that recommends itself to me. 13. I believe that the defendant's counsel has coherently detailed why the defendant cannot have a fair trial if the claim for immunity is upheld in its entirety: see Sully J's comments in A-G v Kaddour & Turkmani4. [2001] NSWCCA 456, para 17.. Mr Davies has made it clear that it is the defence position that the witness obtains a significant income from being a police informer and as such has a powerful incentive to provide information that satisfies his police paymasters. Whilst I have read the confidential affidavit, Dowd J's order prevents me from making any comment or acting in any way that might disclose what that affidavit contains. Investigation of such an assertion is a quite legitimate forensic purpose in any criminal trial. Although the defendant cannot know what the answers to his questions will be precisely, that does not make the proposed cross-examination a fishing expedition: as Adams J noted, in RTA v Connolly [2003] NSWSC 327, para 6., "I consider that the identification of the legitimate forensic purpose together with the reasonable chance that the documents in question might support the defence, is sufficient to justify a subpoena seeking the documents. It is not necessary for a party to show that it is more probable than not either that the particular defined documents exist or that they will assist his or her case." UK Litigation 14. It is noteworthy that details of police payments to informers have been the subject of contractual litigation, and disclosure, in the UK with the informers suing local police authorities for non-payment of promised remuneration. In Savage v Hoddinott (Chief Constable of Hampshire) [1997] EWCA Civ 943 (6th February, 1997). the English Court of Appeal overturned a first instance judge's decision to strike out as frivolous or vexations such a claim by an informer on the basis that the informer could choose to disclose his own role as such "Although there are numerous authorities which deal with the application and indeed the continuing development of the essential principles, one question not yet decided is whether the public interest requires that the principle should be applied when the informer himself positively wishes his activities to be identified. In such circumstances, and assuming that the informer is adult and of reasonable intelligence, it is difficult to see why the Court should prevent disclosure of his activities on the basis that his personal safety would be in danger. Disclosure at his insistence could not serve to undermine one of the essential features of arrangements between the police and their informers that the informers and their identity will normally be protected from disclosure." Per Judge LJ, Potter & Leggatt LJJ agreeing.. It must be said that the opposite view was taken in the more recent English Court of Appeal decision of Carnduff v Rock and Another CA: Waller, Laws and Jonathan Parker LJJ: 11 May 2001; Waller LJ dissenting, preferring the reasoning in Savage v Hoddinott.so the question whether such litigation is possible is somewhat open, although the majority of the Court of Appeal in Carnduff v Rock did note that it was not deciding there could never be a case where this litigation could be pursued without injury to the public interest. 15. When one considers the rationale of the informer rule, it is difficult to see how much of the reasoning applies to the present case. Whilst it is clearly necessary to prevent the witness being compelled to disclose the details of his involvement (if any) in other criminal investigations, it is equally clear that his financial involvement with his police paymasters falls outside that necessity. To show, should it be the case, that the witness has received a steady stream of money from police coffers would be highly relevant to his credit (and, incidentally, to the credit of those paying him). It is particularly difficult to see how or why the sources of information would dry up if, ex post facto, general information about payments by police to informers were disclosed. In fact, it might greatly improve police accountability, and public confidence in the police force, if that information were made generally available. 16. Technically, the Commissioner must succeed in the application, but only to a very limited extent. In my view the witness can properly be asked any question about payment by the police provided it does not disclose the occasion on which, or the matter for which, that payment was made. Questions as to the nature of the payment, including what it was for (in general terms eg as a reward, reimbursement etc) are permissible. Consequently, all the questions proposed by counsel for the defendant are allowable except for Question (5) as presently framed, since it would tend to identify the individual occasions on which payments (if any) were made, and consequently would tend to identify the witness as an informer on those occasions where his identity as such may not otherwise have been revealed. The Statutory Tests. 17. As noted above, s 130 of the Evidence Act provides statutory form for the tests that are to be applied when a claim for public interest immunity is made. Of immediate importance are the provisions of subsections (4) and (5) of s 130. Section 130(4) provides: "(4) Without limiting the circumstances in which information or a document may be taken for the purposes of subsection (1) to relate to matters of state, the information or document is taken for the purposes of that subsection to relate to matters of state if adducing it as evidence would: (a) prejudice the security, defence or international relations of Australia, or (b) damage relations between the Commonwealth and a State or between 2 or more States, or (c) prejudice the prevention, investigation or prosecution of an offence, or (d) prejudice the prevention or investigation of, or the conduct of proceedings for recovery of civil penalties brought with respect to, other contraventions of the law, or (e) disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State, or (f) prejudice the proper functioning of the government of the Commonwealth or a State. 18. The first requirement is that the contested evidence "relates to matters of State", and (4) provides a non-exhaustive list of what matters might fall within that heading. Paras (a), (b), (d) and (f) are clearly inapplicable to deciding whether matters referring to the payment of an acknowledged informer "relate to matters of State"? Para (e) generally reflects the common law position as enunciated by Hunt CJ at CL in A-G v Stuart (1994) 34 NSWLR 667.. In the present context, whilst the informer's identity is known, and he is in fact giving evidence, para (e) is not excluded: as Hunt CJ at CL commented at 679E, "But as an informer against whom was he so known?" [my emphasis]. 19. If the questioning sought by the accused were directed to disclosing on what precise occasions the witness had been paid by police, this could undoubtedly lead to identification of the witness as a possibly unidentified informer in other proceedings, and as such would be contrary to the recognized basis of the "informer" privilege and its statutory enshrinement in s 130. However, if the questions were of a general nature ie how much had he been paid by police in each of the last 10 years, it seems to me they would not disclose anything prejudicial to the identity of the witness as an informer in other proceedings, and yet would allow the defence to pursue the legitimate aim of trying to show that the witness in fact derives a substantial income from police payments and as such has a powerful incentive to fabricate or embroider evidence to satisfy his paymasters. 20. Whilst there is material on this topic in the confidential affidavit, I am not at liberty to disclose it, and it seems clear that that prevents me from taking any action that would disclose its import by implication. The contents of the affidavit are relevant only to the public interest immunity claim, and cannot, in my view, be utilised for any other purpose. If for example I were to rule that the questions would not be allowed because there was nothing in the affidavit to support them, I would in fact be using the contents of the affidavit for an entirely illegitimate purpose, as well as denying the defence the opportunity to test whether what is contained in the affidavit is in fact true or accurate. It would be quite wrong to accept the contents of the affidavit as in any way evidence in the trial of Mr Ayad, although it appears that that is what the Commissioner is attempting to have the court do. 21. So it would seem that, prima facie, the applicant would need to show that disclosure of the payment(s) to an acknowledged informer would "prejudice the prevention, investigation or prosecution of an offence". It seems difficult to support this conclusion on the material before me. 22. Our system of justice has a deep, and thoroughly justified, antipathy to paid informers. The greatest problem is that such an informer is likely to give, or at least favour, the evidence that his or her paymaster desires, and may well be motivated to fabricate such evidence to earn further money and to ingratiate him or herself with that paymaster. Whether the police know it or not, such a witness is obviously as amenable to providing false information that assists the aims of those paying him as to providing true information. The suggestion made on behalf of the applicant that such a witness is somehow akin to an expert who is paid by one side is unsupportable: an expert is (theoretically) non-partisan, and his or her antecedents, qualifications, opinions and credit are open to scrutiny by opposing parties. It seems quite fundamental to me that, in order to do justice, a person against whom an admitted, paid informer has given evidence must, as a general proposition, be entitled to closely examine that informer's past, both criminal and otherwise, to ascertain whether the informer has any history of untruthfulness or other character deficiencies. 23. As noted earlier, the list in (4) is not exhaustive, so it is possible that there are other species of evidence that relate to matters of State that should be protected under s 130. I note that in Young the CCA warned against expansion of the categories of privilege, and that warning is pertinent here. I am unable to discern any new categories here, and none has been outlined to me by the applicant. The Balancing Act (5) Without limiting the matters that the court may take into account for the purposes of subsection (1), it is to take into account the following matters: (a) the importance of the information or the document in the proceeding, (b) if the proceeding is a criminal proceeding---whether the party seeking to adduce evidence of the information or document is a defendant or the prosecutor, (c) the nature of the offence, cause of action or defence to which the information or document relates, and the nature of the subject matter of the proceeding, (d) the likely effect of adducing evidence of the information or document, and the means available to limit its publication, (e) whether the substance of the information or document has already been published, (f) if the proceeding is a criminal proceeding and the party seeking to adduce evidence of the information or document is a defendant---whether the direction is to be made subject to the condition that the prosecution be stayed. 24. Again non-exhaustively, subsection (5) lists matters to be considered in deciding whether the public interest in secrecy outweighs the public interest in disclosure in the present proceedings. 25. The section requires a balancing of two public interests – the public interest in admitting the material into evidence (parenthetically, to further the course of justice inter partes) as against the public interest in preserving the secrecy of the material. Whilst the former may often seem like a purely private interest, it is not, as the section is at pains to make clear: it is the public interest in admitting the material into evidence that is important, not the private interests of the parties concerned. 26. Taking the matters set out in subsection (5) in sequence, it seems reasonably clear that, considering (a) and (b) together, the information that the defence wishes to elicit from the witness could be of considerable importance to the defence case, whilst its disclosure is of little importance to the prosecution case. As far as (c) is concerned, the prosecution is for a very serious charge, being involvement with forging of Australian currency. The information being sought from the witness does not touch directly upon the substance of the charge, but is intimately connected with the witness's credibility. As yet, there has been no indication from the Crown in right of the Commonwealth whether the witness's evidence is significantly corroborated or not, so that any substantial undermining of the witness's credit is likely to substantially weaken the prosecution's prospects of success. 27. With respect to paragraph (5)(d), it is impossible for me to comment on the likely effect of adducing evidence of the actual information contained in the confidential affidavit because of Dowd J's order. Suffice it to say that, in general terms, adducing evidence of the extent to which a witness is in the pay of the police may have a significant effect on the outcome of the case. As far as means available to limit publication are concerned, it would be possible to close the court, although I can see little reason to do so. As far as (5)(e) is concerned, it appears that the information has not been published already, although no definitive answer can be given on that point. 28. Finally, with respect to (5)(f), it seems to me that, if the cross-examination proceeds along the lines that I have indicated I will permit, there seems to be no necessity at all to stay the proceedings, which ought to be brought to a definitive conclusion. Present Facts A. Davies Questions 29. In order to avoid difficulty should the matter go on appeal, I requested, and Mr Davies for the accused graciously consented to provide, a list of the questions that he proposed to ask of the witness. I set them out verbatim in the annex. In doing so, it should be made clear that Mr Davies has only the morning tea adjournment in which to prepare these questions. I indicated to him that he was under no obligation to disclose his case in defence by providing them to the other participants. I do not know whether he did or not, and they are consequently confidential, and should not be made available to the Crown in right of the Commonwealth nor to the NSW Police Service except with the express consent of the defence. They are therefore set out in a confidential annex to these reasons. B. The Affidavits 30. Dowd J's order directs me not to disclose the contents of the confidential affidavit. This poses a practical difficulty, as there are 2 purportedly confidential affidavits, one from Assistant Commissioner of Police Peter Walsh, dated 28 November 2002 (Affidavit 1), and one from Senior Assistant Commissioner Richard Adams, dated 4 February 2004 (Affidavit 2). In addition there is a so-called "open" affidavit from Assistant Commissioner of Police Peter Walsh, also dated 28 November 2002 (Affidavit 3). 31. Quite clearly, Dowd J's order cannot relate to Affidavit 3, as it is not claiming confidentiality. Nor can it relate to Affidavit 2, as that affidavit was not even in existence when his Honour made the order. Consequently, it can only apply to Affidavit 1 of 28 November 2002. 32. I think it is fair to say that, in any event, Affidavits 2 & 3 contain nothing that could possibly attract a claim of public interest immunity, as the fact that Mr Karountzos is a "registered" police informer Whatever that term actually means? The Commissioner's representatives attached some mystic significance to this term, but could provide no legal basis for it, or for the legality of the practice of paying informers out of (apparently unaudited) public funds. (see para 5 of Affidavit 3) is already in evidence without objection by the Commissioner, whose representatives were present throughout the proceedings. At no stage has it been suggested that this information should be or have been suppressed. C. Acceptance/Rejection of Affidavits 33. The Crown has sought to put before me an affidavit the contents of which it insists be kept secret from the defence. Whilst this course has the sanction of binding authority Eg A-G v Kaddour & Turkmani [2001] NSWCCA 456; R v Fandakis [2002] NSWCCA 5, there is, in general, no obligation on any court to accept affidavits on the terms demanded by one participant (not necessarily a party), and it is, with respect, a practice to be scrutinised with the greatest of care to ensure that the court does not become partisan, relying on untested and untestable "evidence" from such a participant. I note that in the long-running Marsden v Amalgamated Television litigation, the trial judge Levine J on occasion had other judges read the disputed material in order to avoid being "tainted" by it should it ultimately be rejected. In many cases, the use of such an affidavit will be appropriate, in others it will not. If, for example, the Crown wishes to put before the court on a secret basis material that will significantly affect the credibility of a particular witness (such as an informer), it is, in my opinion, often inappropriate for the court to receive such material, especially if that witness's credit is likely to be a matter of importance in the trial. For what the Crown is then trying to do is to protect the witness from a very legitimate attack on his credit by placing the material before the court on a secret basis and making the court privy to material that could discredit the witness whilst denying the same material to the accused. 34. Fundamentally, it seems to me that, if the Crown wishes to put material before the court, it must accept that the disclosure of that material is a matter for the court. It cannot be proffered on the basis "we tender it, but if you are going to disclose it, we withdraw the tender". The aim is clearly to influence the court to make a decision in favour of the Crown without permitting the other side to know why that decision is being made. It is far too easy, and too common, for those enthralled by secrecy to completely lose their objectivity in the self-importance of being in the "knowing" cabal, and to be unable to approach claims for government secrecy with the healthy scepticism required of lawyers dealing with unverifiable evidence. 35. Once the cancer of secrecy invades litigation, it is relatively easy to argue against the admission of almost any relevant evidence by constructing a chain of connections between the evidence sought and some legitimate ground for public interest immunity. 36. Recently, in a matter of Bagaric, the Crown sought public interest immunity in respect of the methods used by scientific police to recover erased engine numbers from stolen motor vehicles. Two distinct methods were used: both were basic high school science, and the details of one were in the public domain, so public, in fact as to have been shown in a recent episode of the American television show "CSI". The other method was equally simple and basic, but its use had not been publicised. Whilst I granted the application for immunity for evidence relating to the second method, I was surprised that the Crown should try to suppress public information: this is secrecy taken much too far. In reality, the only real need for secrecy was, it seems, to avoid embarrassment to the police service that it was still using such antiquated methods when more modern and efficient tools were available. D. Colefax Submissions 37. Mr Colefax for the applicant Commissioner made the rather confusing submission that the Evidence Act was a code and that therefore the common law cases on public interest immunity generally, and "informer privilege" in particular, were the governing authorities. Whilst the Act is patently not a code in its entirety, there is no doubt that certain parts of it completely replace pre-existing common law structures with new statutory ones: see for example the views of the HCA in Lee re the operation of s 66 of the Act. Equally clearly, the Act does not cover all fields on which it touches so that, for example the law relating to public interest immunity in non-curial proceedings is not affected by the Evidence Act: Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49.. 38. It has been suggested that there are no relevant differences between the pre-existing common law and the provisions of s 130: State of NSW v Ryan Unreported, 2 Sep 98., Eastman v R (1997) 158 ALR 107.. However, I think that perhaps overstates the position. For example, the common law position with respect to "informer privilege" was that there was to be no disclosure of the identity of an informer unless that was very important in showing the accused's innocence. By contrast, I would suggest that s 130 does not differentiate between different types of public interest immunity claim, and does not contain any special principles applicable to informers. If that observation is correct, it seems that the principles to be applied to all such claims, informer and non-informer, are the same, and are to be found in s 130, informed by case law that has developed since the enactment of that section and which recognizes its significance. Certainly, there is nothing in the present case that would suggest that some special rules are to be applied outside the natural scope of the law developed around s 130 of the Evidence Act 1995. E. Problems with Submissions 39. As is sadly so often the case when matters are aired in the Local Court, the Crown's submissions were superficial, lacking in research or substance, and essentially presented on the basis that the "real" work would be done if the case went on appeal. This case in particular has been marked by the indifferent attitude of those representing the Commissioner, with submissions delivered late (and then only by way of boilerplate pages from a word processor having little or nothing to do with the specific case before the court), supplied authorities (such as they were) being only partial copies (i.e. every second page) and lacking in any up-to-date research of authorities whether in this jurisdiction or elsewhere. 40. In addition, counsel for the applicant sent to the Court "confidential submissions" obviously seeking to have consideration given to particular arguments without the defendant being able to counter those arguments. I considered this to be highly inappropriate, and suggested to counsel that he should provide a copy of the submissions to counsel for the defendant. I gathered in the course of the proceedings that this had been done, however it appears that a paragraph of the submissions was excised as being "too secret" for the defence to see. I did not accede to Mr Colefax's demand that the submissions be kept from the defence. 41. Deleted 42. Deleted Conclusions 43. Unless the defence is permitted to question the witness about matters that would identify the particular occasions in which he has either given evidence or supplied information, questioning him about the amount of payments made to him by the police cannot, in my view, disclose anything that might prejudice either the safety of the witness or the conduct of current or future proceedings. 44. Putting aside the question of identification of a witness as an otherwise undisclosed police informer, one might ask, as a general question, how examination of payments made to a witness by police could be seen to attract public interest immunity. If the witness is in fact being bribed I use the term "bribe" in its colloquial rather than its strictly legal sense ie as "anything given or serving to persuade or induce" (Macquarie Dictionary 3rd ed, 1998) because it is clear that the giving of information to police is not a public duty, nor is the witness a public official of any kind. by police, that is a matter that the public have a compelling interest in discovering. Mr Colefax for the Commissioner refused to address the question how such wrongdoing might be uncovered otherwise than by cross-examination in relevant proceedings. If the witness, contrary to suggestive appearance, is not being bribed, the public has almost as compelling an interest in discovering that fact and being reassured as to the integrity of this vital aspect of the criminal justice system. Clearly, the amounts and frequency with which the witness is being paid, and the reasons for any such payments, will be of considerable relevance in deciding which of these mutually exclusive options corresponds to reality. 45. It is possible, I suppose, that disclosure of what one informer is being paid might cause dissension among informers who are receiving more or less. But as the recent English cases cited above indicate, the issue of the contractual basis (if any) on which informers are paid by the authorities may come to light by other means, including civil litigation. 46. In my view, the result of the balancing exercise required by s 130 is that the defence should not be prevented from cross-examining Mr Karountzos about any of his financial dealings with the police except to the extent that such cross-examination would have a significant likelihood of disclosing whether he had been an unidentified police informer in any other proceedings, or was acting as an informer in respect of any matters that have not yet resulted in proceedings. Whilst the claim to public interest immunity must succeed with respect to any questions that fall into this category, it does not appear to prevent most of the questions that Mr Davies seeks to ask. 47. These proceedings have not been handled particularly competently by those representing the Commissioner, and I have made mention of some of the deficiencies above: they do not need to be repeated. The proceedings have been quite unduly prolonged at considerable expense to the Crown in right of the Commonwealth and the defendant. They ought not to be financially prejudiced by the actions taken by a stranger to the actual litigation before the court. The costs provisions of the Criminal Procedure Act, or its predecessor, the Justices Act, would appear to be inapplicable as they only relate to costs orders as between informant (or prosecutor) and defendant, and do not relate to costs caused by the intervention of third parties. While, as a statutory court, it would appear that the Local Court has no "default" or inherent jurisdiction to award costs in matters not covered by the Criminal Procedure Act, it seems to me that s 192 of the Evidence Act, which empowers a court to give a direction under s 130 on such conditions as it thinks fit, includes a power to give the direction on condition that the applicant pay the costs of the other parties for the time taken up in pursuit of its application: see R v Le Boursicot (1994) 79 A Crim R 548 (NSW SC). Direction 48. I therefore direct that no evidence may be adduced as to the specific occasions on which, or matters in respect of which, the witness received money from the police. This direction is given on condition that the Commissioner pay the costs of the Crown in right of the Commonwealth, and of the defendant, for the days taken up, wholly or substantially, with this application. Costs are to be as agreed, or, failing agreement, will be determined on the basis of written submissions and bills of costs, accompanied by any relevant costs agreements, submitted by the parties within 28 days. 49. I note that I foreshadowed the issue of costs when the matter was last before the Court, and counsel for the Commissioner indicated that written submissions on costs would be transmitted to me prior to today. With little surprise, I observe that no such submissions have been received. R A Brown Magistrate Parramatta Local Court 19 Mar 2004 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.