DIRECTOR OF PUBLIC PROSECUTIONS v 'SNB' [2002] NSWSC 694

New South Wales Supreme Court

CITATION : DIRECTOR OF PUBLIC PROSECUTIONS v 'SNB' [2002] NSWSC 694 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 11393/02 HEARING DATE(S) : 24 June 2002 JUDGMENT DATE : 24 June 2002

PARTIES : 'SNB' JUDGMENT OF : Adams J at 1

LOWER COURT Local Court JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER :

COUNSEL : P A Johnson SC (Plaintiff) C Smith (Defendant) SOLICITORS : S E O'Connor (Plaintiff) Richard Davies (Western Aboriginal Legal Service Ltd) (Defendant) CATCHWORDS : Confidentiality - relationship between s34 Ombusdman Act 1974 and s164 Police Service Act 1990 - admissibility of statement taken in course of investigation of complaint Justices Act 1902 LEGISLATION CITED : Ombudsman Act 1974 Crimes Act 1900 Suitors Fund Act 1951 DECISION : See paragraphs 7 and 8

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

ADAMS J

MONDAY 24 JUNE 2002 11393/02

DIRECTOR OF PUBLIC PROSECUTIONS v SNB

JUDGMENT

1 HIS HONOUR: The plaintiff appeals under s104(2)(b) of the Justices Act 1902 from an order of a Magistrate in the Dubbo Children's Court made on 4 February 2002 dismissing an information laid against the defendant alleging an offence under s314 of the Crimes Act 1900 for making a false accusation against a person, intending that person to be the subject of an investigation of an offence, knowing the said person to be innocent of it. 2 The defendant was served with a Field Court Attendance Notice under s100AB of the Justices Act 1902 by a police officer, Inspector Boyter, in respect of this alleged offence and the information came before the Magistrate for hearing on 4 February 2002. 3 Inspector Boyter was the first witness in the prosecution case. During his evidence the Prosecutor sought to tender a statement taken from the defendant by Inspector Boyter on 13 March 2001 after complaint was made under the Ombudsman Act 1974 about a police officer. Objection was taken to the tender of the statement upon the ground that it was inadmissible by virtue of s34 of the Ombudsman Act 1974. Following a voir dire examination the objection was upheld. The effect of this ruling was that the prosecution was unable to establish an essential element of the case and, accordingly, the information was dismissed. 4 The short question is whether s34 of the Ombudsman Act 1974 applies to information obtained in the course of an investigation by a police officer acting otherwise than under the direction of or at the instigation of the Ombudsman. Section 34 of the Ombudsman Act 1974 relevantly provides: "Disclosure by Ombudsman or officer (1) The Ombudsman shall not, nor shall an officer of the Ombudsman, disclose any information obtained by the Ombudsman or officer in the course of the Ombudsman's or officer's office, unless the disclosure is made: