Commissioner of Police v Fandakis and Anor [2001] NSWSC 586

New South Wales Supreme Court

CITATION : Commissioner of Police v Fandakis and Anor [2001] NSWSC 586 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 11831/01 HEARING DATE(S) : 3 July 2001 JUDGMENT DATE : 13 July 2001

PARTIES : Commissioner of Police - Plaintiff Harry Charles Fandakis and Anor - Defendant JUDGMENT OF : Simpson J

LOWER COURT Local Court JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT Ms O'Shane JUDICIAL OFFICER :

COUNSEL : P Singleton - Plaintiff F S Santisi - Defendant SOLICITORS : I V Knight, Crown Solicitor - Plaintiff Nicopoulos & Associates - Defendant Evidence Act 1995 LEGISLATION CITED : Justices Act 1902 Local Courts Act 1982 Local Court (Civil Claims) Act 1970 Grassby v R (1989) 168 CLR 1 CASES CITED : Director of Public Prosecutions v Deeks (1994) 34 NSWLR 523 Lenny Le Boursicot (1994) 70 A Crim R 548 R v Mosely (1992) 28 NSWLR 735 DECISION : Purported order made in the Local Court on 29 May 2001 requiring the Commissioner of Police to pay to Harry Charles Fandakis costs in the amount of $9,000 is quashed.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

SIMPSON J

13 July 2001

11831/01 COMMISSIONER OF POLICE v Harry Charles FANDAKIS and Anor. JUDGMENT HER HONOUR : 1 By summons filed on 14 June 2001 the plaintiff (the Commissioner of Police, to whom I shall refer as "the Commissioner") seeks an order in the nature of certiorari quashing an order of a magistrate of the Local Court. The order in question was an order that the Commissioner pay certain costs incurred by the defendant (Mr Harry Fandakis) in the course of committal proceedings. The Commissioner's contention is that the magistrate had no power to make the order. He does not assert that, if power existed, any error in the exercise of discretion can be identified, nor does he challenge the quantification. The issue, then, concerns purely a question of the power of the magistrate to make the order in the circumstances that appertained. 2 The factual background is this. Mr Fandakis was charged with indictable drug offences. Committal proceedings in the Local Court began on 11 December 2000. On that day a police officer, while under cross examination on behalf of Mr Fandakis, sought to be excused from answering certain questions. The basis for his request has consistently been referred to as "public interest immunity" or "privilege". It may be taken that what he sought is properly characterised as a direction under s 130 of the Evidence Act 1995 that the information sought to be obtained from the answers to the questions not be adduced as evidence. S130 permits such a direction to be given where: "… the public interest in admitting into evidence information … that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information …" 3 Information of a kind that relates to "matters of state" is explained in sub s (4); considerations relevant to the exercise of the discretion to give a direction are contained in sub s (5). Because of the course the proceedings subsequently took it is unnecessary to do more than note those subsections. 4 Although the committal proceedings had been listed to proceed over that day (11 December) and the following day, they were, on the application of the prosecution, adjourned to enable evidence to be adduced in support of the claim for "public interest immunity". 5 The committal was relisted on 22 December. The transcript records the magistrate opening the proceedings by saying: "This matter is in today for the tendering of an affidavit re the claim of public interest immunity that is made by the informant - I beg your pardon, not the informant, he was one of the arresting police officers …" 6 The transcript of that day also records (incorrectly, I was told by both counsel) that a Mr Barrie appeared for the informant. The fact was, I was further informed, Mr Barrie appeared as representative of the Commissioner for the purpose of pursuing the application made under s130. The transcript does not disclose the formal basis of Mr Barrie's appearance: that is, there is nothing to suggest that he formally intervened in the proceedings on behalf of the Commissioner, or that his application was made pursuant to any documentary process. Nevertheless, discussion ensued in which Mr Barrie was clearly enough accorded the right to be heard and to represent the Commissioner for the purpose stated. Mr Barrie sought to put certain material before the Court but this was rejected, the magistrate observing that evidence in affidavit form was required. 7 There followed further discussion, apparently about an affidavit that Mr Barrie received during the proceedings, and upon which he sought to rely. The magistrate rejected the document. Initially, it appears that she rejected it because of its form - she said that it was not set out in appropriate form, and that it was: "really a statement which then attaches an affidavit made by some other person …".