New South Wales Supreme Court CITATION : Nye v State of New South Wales & ors [2002] NSWSC 1266 FILE NUMBER(S) : SC 21458/96 HEARING DATE(S) : 10/09/02 JUDGMENT DATE : 13 September 2002 Garry Raymond Nye State of New South Wales Wayne Popplewell PARTIES : Wayne Desmond Gordon Peter James Hawley David John Barnett Director of Public Prosecutions JUDGMENT OF : O'Keefe J COUNSEL : Plaintiff: Mr B Donovan QC with Mr D Baran and Mr C Thompson Defendant: Mr I Temby QC with Mr P Lakatos SOLICITORS : Plaintiff: Miss E Faccin - Carol & O'Dea (Sydney) Defendant: Ms G Fuller - Crown Solicitor's Office (Sydney) CATCHWORDS : Evidence - Subpoena for production of documents - Public Interest Immunity - Informer - Witness or potential witness - Likely compromise of incomplete but ongoing investigation - Operational orders in respect of completed investigation - Informants Register - Legal Professional Privilege - Legal advice - Dominant purpose - Exceptions to claim for Legal Professional Privilege - Crime fraud exception Evidence Act 1898: ss 14CD, 14CF, 14CG LEGISLATION CITED : Royal Commissions Act 1923: s 5 Royal Commission (Police Service) Act 1994 Evidence Act 1995: s 55, 69(1), 69(2), 69(3), 135, 136, 137, dictionary Part 1 & Part 2, cl 1(1)(d) Marks v Beyfus (1890) 25 QBD 494 D v National Society for the Prevention of Cruelty to Children (1978) AC 171 Signorotto v Nicholson (1982) VR 413 McGuinness v Attorney General (1940) 63 CLR 73 Cain v Glass (1985) 3 NSWLR 230 Sankey v Whitlam (1978) 142 CLR 1 Alister v Regina (1983 - 1984) 154 CLR 404 Conway v Rimmer (1968) AC 910 CASES CITED : Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1996 - 1997) 188 CLR 501 Grant v Downs (1976) 135 CLR 674 O'Reilly v State Bank of Victoria Commissioners (1983) 153 CLR 1 Esso Australia Resources v Federal Commissioner of Taxation (1999) 201 CLR 49 Thomason v Council of the Municipality of Campbelltown (1939) 39 SR (NSW) 347 Attorney General (NT) v Kearney (1985) 158 CLR 501 Clark v United States (1933) 289 US 1 Regina v Bell; Ex parte Lees (1980) 146 CLR 141 O'Rourke v Darbishire (1920) AC 581 DECISION : Production refused subject to exceptions. - 11 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION O'Keefe J 13 September 2002 21458/96 Nye v State of New South Wales & ors JUDGMENT 1 A subpoena for the production of documents and notices to produce have been served in this matter. They require the production of a large number of documents. Objection has been taken to the production of some of those documents. The first objection by Mr McIlwaine on behalf of the Crown raised a claim of public interest immunity. Objections have also been taken separately on behalf of the Director of Public Prosecutions. I shall refer to those later. 2 Dealing first with the objection based on public interest immunity: the principal documents the subject of this claim are set out in a confidential affidavit of Senior Assistant Commissioner Brian Reith of 10 September 2002. These documents fall into three categories. The first category, which is referred to in paragraph 2 of such affidavit, consists of ten specified items. A number of these, namely, those referred to in paragraphs 2(i), 2(ii), 2(iii), 2(iv) 2(v) and 2(x) of the affidavit, relate to and are said to reveal the identity of informants in criminal matters. 3 Others, namely those referred to in paragraphs 2(iv), 2(vi) (part) and 2(x), are said to reveal the names of witnesses in matters relating to persons other than Roy Thurgar, the man whose murder is at the core of the present proceedings. The material referred to in paragraphs 2(vii) and 2(viii) is said to refer to incomplete but ongoing investigations as a result of which there may be charges laid against certain persons. The objection taken to the production of the material referred to in paragraphs 2(iv), 2(v) and 2(x) is also based on a claim that the investigation to which they refer concerns a known serious criminal who is said to have a history of violence, intimidation and alleged murder. In addition, a claim to legal professional privilege is made in respect of the material referred to in paragraphs 2(iv), 2(v), 2(vii) and 2(x). The objection relating to the documents referred to in paragraph 2(ix) is based on a claim that it would reveal confidential police material and material relating to the National Crime Authority which would indicate the nature of their activities and operations and, in particular, their administrative arrangements in relation to the handling of information concerning particular investigations. 4 A claim of public interest immunity includes within its ambit the nondisclosure of informers. In Marks v Beyfus (1890) 25 QBD 494 Lord Esher MR, with whom Lindley and Bowen LJJ agreed, said that: "... the rule as to nondisclosure of informers applies, in my opinion, not only to the trial of the prisoner but also to a subsequent civil action between the parties on the ground that the criminal prosecution was maliciously instituted or brought about." (supra at 499) 5 In D v National Society for the Prevention of Cruelty to Children (1978) AC 171, Lord Diplock said: "By the uniform practice of the judges which by the time of Marks v Beyfus (25 QBD 494) had already hardened into a rule of law, the balance has fallen on the side of nondisclosure 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." (at 218) 6 In Signorotto v Nicholson (1982) VR 413, Fullagar J applied a like principle. He said: "... there is a strong and long established rule of the Common Law based upon paramount considerations of public policy, which at the very least requires that in any legal proceeding...a policeman cannot be required, indeed cannot be permitted, to divulge the identity of a paid police informer who has given the policeman information received in his character as a policeman and as part of his duties in upholding the law. This is probably not one of the rare exceptions to what Dixon J said would be otherwise "an inflexible rule... that no objection of honour, no duties of disclosure arising from the nature of a pursuit or calling could stand in the way of the imperative necessary of revealing the truth in the witness box." ( McGuinness v Attorney-General (1940) 63 CLR 73 at 102-103). It is, I think, a much more powerful exception from the duty of revealing the truth, dependant not upon mere obligations of honour and not upon contracts or mere pursuits or callings but upon the imperative necessity of keeping the flow of information to the police from police informers". (at 417) 7 The rule, however, is not inflexible, as is apparent from Cain v Glass (1985) 3 NSWLR 230, since the court, whilst respecting the claim for public interest immunity made on behalf of the Crown, does not treat such claim as conclusive. The claim of itself does not bind the court. The court has its own duty to consider the claim (at 234). However, where the claim relates to informers, revealing the identity of an informer will not be required. 8 In his review of public interest immunity, McHugh J said: " The protection of the identity of informers is the result of the immunity from disclosure granted to communications made in the public interest. The protection is no longer regarded as the consequence of an independent rule or privilege, but is recognised as a particular manifestation of the doctrine of public interest immunity... The informer rule, however, has one unique characteristic: contrary to the submission of the appellants, the court does not weigh the public interest in adducing evidence relevant to the curial proceedings against the public interest in maintaining a flow of intelligence concerning the commission of crimes. ... 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 for its perpetrators will stop... 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 preceding 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. " (at 246-247) 9 In the light of the foregoing statements of the law, the documents which identify, or may identify, police informers, whether paid or not, are protected from disclosure and will not be made available to the parties. This refusal relates to the documents referred to in paragraphs 2(i), 2(ii), 2(iii), 2(iv), 2(v) and 2(x) of Assistant Commissioner Reith's affidavit. 10 In Sankey v Whitlam (1978) 142 CLR 1, Gibbs ACJ said: " The general rule is that the court will not order the production of a document, although relevant and otherwise admissible, if it would be injurious to the public interest to disclose it. However, the public interest has two aspects which may conflict. These were described by Lord Reid in Conway v Rimmer (1968) AC 910 at 940 as follows: `There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done.' It is in all cases the duty of the court, and not the privilege of the executive government, to decide whether a document should be produced or may be withheld. The court must decide which aspect of public interest predominates, or in other words whether the public interest which requires that the document should not be produced outweighs the public interest that a court of justice in performing its functions should not be denied access to relevant evidence. In some cases, therefore, the court must weigh the one competing aspect of the public interest against the other and decide where the balance lies. In other cases, however, as Lord Reid said in Conway v Rimmer (at 940), "the nature of the injury which would or might be done to the nation or the public service is of so grave a character that no other interest, public or private, can be allowed to prevail over it'. In such cases once the court has decided that 'to allow the production of the document in evidence would put the interest of the state in jeopardy, it must decline to order production." (at 38-39) 11 The law as stated by Gibbs ACJ was adopted in Alister v Regina (1983-1984) 154 CLR 404 by Wilson J (at 414) and by Dawson J (at 416). Although Wilson and Dawson JJ dissented as to the result in that case, their reasons in relation to the present subject matter were consistent with the reasons of the majority. 12 The claim to public interest immunity based on the likelihood of compromise to incomplete, but ongoing, investigations into serious crime and serious criminal activity by known criminals is thus well founded. It is in the public interest that such an investigation not be compromised, unless it is in the interests of justice that material which may compromise such an investigation be made known, either in a criminal proceeding where its revelation could result in the acquittal of a defendant or where, in a civil case, the court determines that the public interest which requires that the documents not be produced is outweighed by the public interest that a court of justice in performing its function should not be denied access to relevant material. 13 Applying the law so stated and weighing the competing aspects of the public interest I am of the opinion that the documents relating to the incomplete but ongoing criminal investigations referred to in the affidavit of Assistant Commissioner Reith should not be made available to the parties. As a consequence, the documents referred to in paragraph 2(vii) and 2(viii) should not be made available. 14 Public interest immunity extends beyond the protection of the identity of an informer. It is apt to cover situations in which there is a real, present or apprehended danger to potential witnesses in matters other than the instant proceeding, including those current or likely in the future. A number of the documents referred to in paragraph 2 of the affidavit of Assistant Commissioner Reith fall within this category. Having regard to their contents I am satisfied that it would be not be in the public interest to allow inspection of them by the parties. I am fortified in this conclusion by the absence of detriment to the plaintiff in the present proceedings from a refusal of access to them. This refusal relates to the documents referred to in paragraphs 2(iv), 2(vi)(part) and 2(x). 15 An examination of the documents referred to in paragraphs 2(iv), 2(v), 2(vii) and 2(x) of the affidavit of Assistant Commissioner Reith reveals that the objection to production on the ground of legal professional privilege is well founded. Accordingly, for this additional reason, the documents in such paragraphs will not be made available to the parties. 16 The objection to the production of the documents referred to in paragraph 2(ix) of the claim of Assistant Commissioner Reith is based on the fact that the documents disclose confidential police and National Crime Authority methodology. Inspection of such documents reveals that they relate to an ongoing investigation concerning the criminal activity of a person said to be a well known criminal. Furthermore, the documents convey information in relation to the future management and recording of information concerning such investigation. Notwithstanding that they were prepared in 1999 and 2000, they have continuing relevance in relation to an ongoing investigation and in my opinion it would be contrary to the public interest to make such documents available. Moreover there is not, in my opinion, any detriment to the plaintiff from the refusal to allow his legal representatives to inspect such documents. Accordingly, the documents referred to in paragraph 2(ix) of the affidavit of Assistant Commissioner Reith will not be made available to the parties. 17 The claim made in respect of document in the second category (referred to in paragraph 9 of the confidential affidavit and detailed in confidential exhibit BR2) is that the material "discloses the identity of a former registered informant." The claim in respect of this document was not pressed by Mr McIlwaine when he argued public interest immunity. The reasons for this are clear and in my view correct. First, the person named as informant has revealed himself as an informant. Second, he is no longer an informant. Third, he was the informant whose evidence was significant - according to the plaintiff, quintessential – in relation to to the charge of murder which was laid against him and in respect of which he was acquitted. Fourth, the reference that is made to the documents in the affidavit follows, and does not appear to be associated with, the claims to public interest immunity made in paragraphs 7 and 8 of such affidavit. In these circumstances I do not think that the claim of public interest immunity is valid, and accordingly the documents will be made available to the parties. However, they are made available on the basis that their contents will be available to them and will be used only by them and those who are involved in the preparation and presentation of the parties' cases. 18 The third category of documents is that referred to is in paragraph 16 of the confidential affidavit and detailed in the confidential exhibit BR3. The sole document in this category is an edited version of operational orders for the arrest of the plaintiff on 24 July 1991. Again, Mr McIlwaine did not press the claim in respect of these documents, but drew attention to the fact that the third paragraph of it had been obliterated, against the contingency that the information in it might possibly convey to some persons with particular knowledge the identity of an informer. The reasons that this claim was not pressed are also apparent. First, the material sets out details of what was in fact done at the time of the arrest of the plaintiff. Second a perusal of the document shows that it does not contain any information of a kind that would be secret or such as would reveal current methodology of the police. Third, there is clearly a proper forensic purpose for production. Fourth, there is no specific matter advanced, other than the reference to possible identification of an informant, that would justify a claim for public interest immunity. The fact that the paragraph from which the identity of an informant might possibly be revealed to some persons with particular knowledge has been obliterated, overcomes any objection in that regard. In these circumstances, I am of the opinion that it is appropriate to allow the parties to have access to the document. This will be on the basis that its contents will be made available to and will be used only by those involved in the preparation and presentation of the parties' cases. 19 Objection was also taken by the Director of Public Prosecutions to the production of a number of documents comprehended by the relevant process. First, there was a blanket objection taken on behalf of the Director to the production of any part of what was described as the informant register. This was on the basis that the whole of its contents is the subject of legal professional privilege. This raises a difficult question in respect of which further consideration is required. Secondly however, a traditional claim of legal professional privilege was raised on the basis that the documents of which production was sought were brought into the existence for the dominant purpose of obtaining or giving legal advice, or for use in litigation which was then pending or intended or reasonably apprehended. 20 In Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1996-1997) 188 CLR 501, the High Court considered the basis and ambit of legal professional privilege. Brennan CJ said: "The reason why privilege is accorded to a document produced for use in litigation or for the obtaining of or giving of legal advice is because `it assists and enhances the administration of justice by facilitating the representation of clients advisors' ( Grant v Downs (1976) 135 CLR 674 at 685). Privilege protects the confidentiality of documents produced for the purpose of communication between a potential litigant and a legal advisor and confidentiality facilitates the administration of justice. In Grant v Downs (at 685), Stephen, Mason and Murphy JJ said: `This it does by keeping secret their communication thereby inducing the client to retain his solicitor and seek his advice and encouraging the client to make a full and frank disclosure to the solicitor.' Communications may be documentary, as Mason J pointed out in O'Reilly v State Bank of Victoria Commissioners ((1983) 153 CLR 1 at 22-25)): 'But if communications in written form are to be privileged they must be confidential communications between solicitor and client made for the purpose of advice or for the purpose and use of existing or anticipated litigation. The documents must come into existence for, and be prepared for, that purpose. So in Grant , a majority of this Court held that legal professional privilege is confined to documents which are brought into existence for that sole purpose.' ... Authority and principle thus combine to establish that, prima facie copies of non-privileged documents are privileged if the copies are brought into existence solely for the purpose of obtaining or giving legal advice or solely for use in litigation that is pending, intended or reasonably apprehended." (at 508 to 509). 21 The above statement of the rule has now been modified to substitute "dominant purpose" for "sole purpose" in the test to be applied. Esso Australia Resources v Federal Commissioner of Taxation (1999) 201 CLR 49). 22 The rule is subject to some well recognised exceptions. One is where the fact and nature of the advice is an issue in the case (Thomason v Council of the Municipality of Campbelltown (1939) 39 SR (NSW) 347 at 359 per Jordan CJ. Another is where the communication is in furtherance of a fraud (Commissioner of Australian Federal Police v Propend Finance Pty Ltd (supra at 545; 556)). Yet another is where the communication is made for the purposes of, or has the effect of, frustrating the processes of the law itself (Attorney-General (NT) v Kearney (1985) 158 CLR 501 at 515 per Gibbs CJ. 23 The principle of legal professional privilege is based on considerations of public interest, and as was said by Cardozo J in Clark v United States (1933) 289 US 1: "The privilege takes flight if the relation is abused." (at 15) 24 In Regina v Bell; Ex parte Lees (1980) 146 CLR 141, Gibbs CJ said that the principle was that: "The privilege, which arises only because the public interest requires it, does not exist when it is seen that it would be contrary to a higher public interest to give effect to it". (supra at 147) 25 Stephen J said about legal professional privilege that: "One thing is clear. It is that privilege...cannot be claimed where its confidentiality was sought...in order to frustrate the processes of the law". (supra at 156) 26 Wilson J, with whom Aikin J agreed, said that: "...it would be odd if the principle extended to protect communications which were directed against the public interest". (supra at 161) 27 Murphy J took a similar view. He said: "…it would be curious if the child's welfare was not paramount over legal professional privilege..." (supra at 159) 28 The statement of principle by Cardozo J (supra) was referred to by Gibbs CJ with approval in Attorney-general (NT) v Kearney (supra), when he said: " These statements of principle and the reason on which it is based suggest that the exception is not confined to cases of crime and fraud even in the wider sense in which fraud has been used in this context, unless the meaning of that word is extended to include anything that might be described as a fraud on justice". (at 514); and, having referred to Regina v Bell; Ex parte Lees (supra) said: " The case is authority for the view that legal professional privilege will be denied to a communication which is made for the purpose of frustrating the processes of the law itself even though no crime or fraud is contemplated". (at 515) 29 The conclusion of principle reached by Gibbs CJ, with which Mason and Brennan JJ expressly agreed (at 517), was that: " It would be contrary to the public interest which the privilege is designed to secure - the better administration of justice - to allow it to be used to protect communications made to further a deliberate use of statutory power and by that abuse to prevent others from exercising their rights under the law". (at 515) 30 The ultimate conclusion by Gibbs CJ was that: "Where legal advice had been given to the administration to further an abuse of statutory authority and by that abuse to prevent others from exercising their legal rights under the law such advice is not the subject of legal professional privilege in that it was contrary to the public interest." (at 515) 31 Although a mere allegation of illegal purpose is not of itself sufficient to displace a claim for legal professional privilege, and whilst an onus of establishing the basis of the exception lies on the party asserting it, it is not necessary that the party seeking to displace such privilege should prove that the communication was in furtherance of a crime or a fraud, but the party must show that there is something to give colour to such claim (O'Rourke v Darbishire (1920) AC 581 at 604 per Viscount Finlay; Attorney General (NT) v Kearney supra at 516 per Gibbs CJ; Commissioner of Australian Federal Police v Propend Finance Pty Ltd supra at 556 per McHugh J). 32 It is clear from a perusal of the documents that were produced to the court by the Director of Public Prosecutions that a number of them consist of legal advice that was tendered in connection with the proceedings that were then on foot or the commencement or continuance of which was in contemplation. Subject to a consideration of the exceptions referred to above, these are protected by legal professional privilege and will not be made available to the plaintiff. 33 Certain such documents, however, in my opinion fall within the above exceptions to the rule relating to legal professional privilege. 34 These documents include statements which are incorporated into a separate part of this judgment and which will remain confidential until the defendants have had an opportunity to consider these reasons. 35 These statements, in my opinion, result in the loss of legal professional privilege in respect of the statements in question, and in respect of so much of the documents in which they occur as is necessary to understand them. As a consequence I propose to allow access to those statements. 36 A number of the documents the subject of objection on behalf of the Director of Public Prosecution do not on their faces bespeak the protection of conventional legal privilege. However, before determining whether access to those documents should be granted it will be necessary to deal with the blanket objection referred to above. I shall do this as soon as is possible. ********** Last Modified: 02/07/2003 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.