New South Wales Court of Criminal Appeal CITATION : Attorney General v Kaddour & Turkmani [2001] NSWCCA 456 FILE NUMBER(S) : CCA 60624/01 HEARING DATE(S) : 13 November 2001 JUDGMENT DATE : 16 November 2001 PARTIES : Atorney General Kaldid Kaddour and Bassam Turkmani JUDGMENT OF : Spigelman CJ at 1; Sully J at 2; Adams J at 24 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 0011/0634; 0011/0645 0011/0645 LOWER COURT JUDICIAL Woods DCJ OFFICER : COUNSEL : R. D. Cogswell SC/P.F. Singleton - Attorney General P.I. Lakatos as amicus curiae - Contradictor SOLICITORS : Crown Solicitor's Office - LEGISLATION CITED : Criminal Appeal Act 1912 (NSW) Evidence Act 1995 (NSW) CASES CITED: Arthur Stanley Smith (1996) 86 A Crim R 308 DECISION : Appeal allowed; Interlocutory judgment and orders rejecting claim of public interest immunity vacated IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL 60624/01 SPIGELMAN CJ SULLY J ADAMS J Friday 16 November 2001 ATTORNEY GENERAL v Kaldid KADDOUR & Bassam TURKMANI JUDGMENT 1 SPIGELMAN CJ: I agree with Sully J. 2 SULLY J: This is a Crown appeal brought by the Attorney General as of right pursuant to section 5F of the Criminal Appeal Act 1912 (NSW). The appeal challenges an interlocutory judgment given by his Honour Judge Woods QC on 10 September last. Mr. Kaddour and Mr. Turkmani, the respondents to the appeal, are currently standing trial before his Honour, sitting without a jury, upon a charge of having solicited the murder of one Albert Brikha. The interlocutory judgment against which the appeal has been brought by the Attorney General concerns some questions of public interest immunity privilege. 3 The relevant facts can be extracted, sufficiently for present purposes and as follows, from the written submissions of learned Counsel for the appellant: "Both respondents are charged with soliciting the murder of Albert Brikha. The case alleged by the Crown may be summarised as follows. On 4 July 1997 Brikha, a tow-truck driver, and John Assadourian, a tow-truck driver from a rival business, attended the scene of a motor vehicle accident . The two men argued and Assadourian invited Brikha to go to nearby bushes to settle their differences; Brikha accepted. Out of sight of witnesses at the scene of the accident, three shots were fired. Assadourian emerged from the bushes and departed from the scene. Brikha was found wounded by three bullets. Soon afterwards, Assadourian was charged with attempting to murder Brikha. Brikha was the key Crown witness. On 20 February 1998, whilst the committal proceedings against Assadourian were pending, Brikha was shot dead outside his house. A police investigation ensued and inter alia focussed on people in the tow truck industry. An initial target was, of course, Assadourian. George Agoulian, an associate of Assadourian, was also investigated. One method used during the investigation was to have police informers engage Assadourian and Agoulian in conversation in circumstances where the conversation might be recorded and might disclose relevant evidence. Neither of the two respondents were targeted in this way (nor was anyone else targeted in this way, although others' conversation was monitored collaterally). The Crown case is that the respondents, who also worked in the towing industry, solicited Anthoney Lo to murder Brikha. Lo has pleaded guilty to the murder of Brikha and is serving a sentence for that crime. Lo is now a Crown witness in the present case. He has given direct evidence that the respondents solicited him to murder Brikha. Two police informers are to be called to give evidence in the ordinary way (i.e. to give evidence of things they saw, heard or otherwise perceived). At issue in this appeal is whether or not any witnesses can be questioned so as to ascertain which of them are the informers. (As the informers were identified in the judgment initially delivered in the presence of counsel for the accused, those counsel know the identities.)" 4 On 21 August last Det. Snr. Constable Robert Barnett was called to give evidence in the Crown case against the respondents. In cross-examination he was asked this question: "Q. Was it part of your investigation – consider your answer again please – concerning Mr. Agoulian – did part of your investigation involve the sending in of non-police personnel to engage in conversation with George Agoulian in these premises?" 5 Det. Snr. Constable Barnett responded: "I claim privilege on that." 6 This exchange triggered the making by the Commissioner of Police of applications to his Honour that certain lines of cross-examination be disallowed for reasons of public interest immunity. 7 Those applications were supported by three affidavits, one sworn by Mr. K. E. Moroney, a Deputy Commissioner of Police; and the other two sworn by Mr. Jeffrey Thomas Jarratt, another Deputy Commissioner of Police. Each of those three affidavits made reference to a "Confidential Statement", being a separate document marked as an exhibit to the particular individual affidavit. Each affidavit did not reproduce, of course, the contents of the Confidential Statement to which that affidavit referred; but the Confidential Statement itself was made available to the learned trial Judge; and has been made available to the members of this Court in connection with the hearing of the present appeal. 8 Each of the three affidavits asserts, put simply, two propositions, namely: 1. That Det. Snr. Constable Barnett has been asked a question in cross-examination "the answer to which may lead to the identification of an informer and as such is subject to a claim of public interest immunity" . 2. That for proper reasons of public interest immunity, no civilian witness called at the trial, with the exception only of Anthony Lo, Raymond Lo and Linda Lo nee Champness, should be exposed to cross-examination "as to whether they provided assistance to the police in generating conversations with persons of interest including George Agoulian or John Assadourian" . 9 It is put, in support of this second proposition, that 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". 10 Given the whole of the foregoing circumstances, the first question requiring the learned trial Judge's careful consideration was the question whether, and if so to what extent, section 130 of the Evidence Act 1995 (NSW) was applicable to the immunity applications made by the Commissioner. 11 Sub-section (1) of section 130 provides: "(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." 12 There are no closed categories of "matters of state", but sub-section (4) of section 130 defines a number of situations which will be taken to relate to "matters of state". One such situation is defined as follows in paragraph (e) of sub-section (4). "(4)…………… The information or document is taken ……………..to relate to matters of state if adducing it as evidence would: (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" 13 It seems to me to be clear that the information which is the subject of the present claims of public interest immunity fits within the statutory definition in paragraph (e). 14 If that be a correct view, then section 130 is applicable. That entails that the test established by sub-section (1), as amplified by, but not restricted by, sub-section (5) of section 130, provides the sole proper test by reference to which the present claims of public interest immunity were to be decided by the learned trial Judge. 15 The proper application of section 130(1) required that the learned trial Judge identify with precision, and then balance fairly and sensibly, the two competing public interests to which sub-section (1) makes reference. 16 In that connection, it seems to me that a fair reading of the three affidavits and their respective supporting Confidential Statements, makes completely clear the bases upon which it was being contended that there was a public interest, and a preponderant public interest, "in preserving secrecy or confidentiality in relation to the information or document". It is not possible, as I think, to define with equal precision what is said to be the public interest in admitting to evidence the controversial information. 17 It is, of course, obvious that the basic contention of the respondents was, and is, that they cannot have a fair trial unless they are permitted to adduce, and to test, the information for which immunity has been claimed. That does not provide, however, any coherent exposition of precisely why the respondents cannot have a fair trial if the claimed immunity is upheld. It was submitted for the appellant that there is in truth no single statement to be found in the transcript of the relevant arguments, defining with any acceptable precision the basis or bases upon which it is contended for the respondents that there cannot be a fair trial in the absence of the adducing and testing of the information for which immunity has been claimed. It is submitted for the appellant that it is possible to deduce from the arguments advanced in the Court below four broad arguments in support of the proposition that there cannot be a fair trial of the respondents if the immunity claims are upheld. Learned counsel for the appellant made available to the Court a document which summarises as follows those apparent defence arguments: [1] Someone other than the respondents was responsible for the murder. There has been a biased police investigation. The police have filtered information that has come before the Court and are denying the respondents the opportunity of identifying and of developing those alternative hypotheses. There were two relevant rival groups in the tow-truck industry and the police investigation has favoured one over the other. The evidence before the Court is the result of police endeavouring to confirm previously held suspicions, rather than the result of an unprejudiced police investigation. [2] The technique employed by the investigating police of using people to engage others in conversation with the aim of obtaining intelligence and evidence might have caused the targets of the operation to colour their evidence, because of feeling intimidated or for some other reason. This goes to the credit of the witnesses who were targets of the technique. [3] It is material to know if a witness was an informer so that the credit of that witness can be challenged by asking whether or not he was paid or given some other improper inducement. [4] An agent used by the police might have started false rumours which, so the argument would presumably run, might have in some way found their way into the evidence. 18 The appellant's summary gives various transcript references to which it is not necessary to refer in fine detail. 19 What the trial Judge was required to do was, in my opinion, to strike a careful and sensible balance between, on the one hand, the precise objections taken in the affidavits and their respective supporting Confidential Statements; and, on the other hand, a congeries of fairly imprecise and speculative propositions of the kind summarised in the paragraphs numbered [1] through [4] above. In striking that balance, the learned trial Judge was required to consider, so far as was relevant, the particular matters to which reference was made in sub-section (5) of section 130. His Honour was required to consider as well, - for the requirements of sub-section (5) are inclusive and not exclusive, - the propositions summarised in the decision of this Court, (Gleeson CJ, Clarke and Sheller JJA), in Arthur Stanley Smith (1996) 86 A Crim R 308: see in particular at 311, 312. 20 The learned trial Judge, in proceeding in the way in which I have suggested his Honour ought to have proceeded, was entitled to "inform himself in any way he thought fit": see section 130(3).His Honour was entitled to have full regard to what was said in the various Confidential Statements; and to take the contents of those Statements fully into account without disclosing in any way or to anybody the contents of the Confidential Statements. 21 I have read with care the published reasons of his Honour. They do not show a process of reasoning that is remotely akin to that which I have earlier herein suggested. His Honour's entire exposed process of reasoning seems to concentrate upon whether the respondents had a reasonable or legitimate forensic purpose in seeking to adduce and to test the evidence for which immunity had been claimed. In my respectful opinion his Honour's approach was entirely misconceived. The question for his Honour did not involve some free-wheeling inquiry into what his Honour described at one point in his reasons as "a real prospect of forensic fruitfulness". What was required of his Honour was a precise and careful striking of a precise and prescribed statutory balance. It is my respectful opinion that a fair reading of his Honour's published reasons does not disclose any such striking of that prescribed balance. 22 For the whole of the foregoing reasons, I am of the opinion that the appeal should be allowed; and that the interlocutory judgment and orders rejecting the claim of public interest immunity should be vacated. 23 All three copies of the Confidential Statements referred to in this judgment should be placed in a sealed envelope, the envelope being marked "Confidential: not to be opened without the prior order of a Judge of this Court"; and kept with the Court file for any necessary future reference. 24 ADAMS J: I agree with Sully J. *********** 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.