New South Wales Supreme Court CITATION : BRENNAN v. STATE OF NEW SOUTH WALES [2006] NSWSC 275 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S) : 6-9, 14,22, 24, 27, 29 March JUDGMENT DATE : 11 April 2006 JURISDICTION : Common Law JUDGMENT OF : Hall J at 1 DECISION : Permanent non-publication order sought to suppress disclosure of those paragraphs of opening address and submissions of counsel re [XXXXXXXXX] undercover police operatives - permanent order refused. LEGISLATION CITED : Law Enforcement (Control Operations) Act 1987 NSW Sankey v. Whitlam (1978) 142 CLR 1 Re applications by Chief Commissioner of Police (Vic.) for leave to appeal (2004) 9 VR 275 CASES CITED : Regina v. Mentuck [2001] 3 SCR 442 John Fairfax & Sons Limited v. Police Tribunal of NSW (1986) 5 NSWLR 465 Jarvie v. The Magistrate's Court of Victoria at Brunswick (1995) 1 VR 84 at 89 Brennan v. State of New South Wales [2006] NSWSC 167 PARTIES : BRENNAN, Susan Lynette v. STATE OF NEW SOUTH WALES FILE NUMBER(S) : SC No. 20300/2005 P: B. Stratton, QC./G. Jones COUNSEL : D: I.G. Harrison, SC./D. Mallon Comm. Police: P. Singleton Nationwide News/John Fairfax: T. Blackburn, SC./T. Maltz P: John Orford & Associates SOLICITORS : D: I.V. Knight Comm. Police: I.V. Knight Nationwide News/John Fairfax: Blake Dawson Waldron LOWER COURT DATE OF DECISION : 06/03/2006 This is a redacted version of the judgment. IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION HALL, J. TUESDAY 11 APRIL 2006 No. 20300 of 2005 SUSAN LYNETTE BRENNAN v. STATE OF NEW SOUTH WALES JUDGMENT – No. 3 (On application by Commissioner of Police) 1 HIS HONOUR: In the judgment delivered on 22 March 2006, I granted leave to the Commissioner of Police to apply for a permanent non-publication order with respect to the matters the subject of Table II: [XXXXXXXXX] undercover police operatives, paragraphs [63] to [67] of the judgment. 2 On 24 March 2006, Mr. Singleton of counsel on behalf of the Commissioner of Police, sought and obtained leave to file in court two affidavits of Andrew Phillip Scipione, Deputy Commissioner, Field Operations of New South Wales Police, sworn 24 March 2006. One of those affidavits was made and received as a confidential affidavit. 3 The two affidavits were filed pursuant to the leave granted and referred to in the judgment of 22 March 2006, paragraph [67]. The non-confidential affidavit states that the Commissioner of Police objects on the basis of public interest immunity to the disclosure of the portions of senior counsel's opening address recorded on p.25 of the transcript as identified in Table II. 4 Objection is also taken, on the same ground, in relation to portions of the transcript on p.38 as identified in Table II, which records Mr. Singleton's submissions in support of the application for non-publication orders. 5 The affidavit evidence in support of the claim to public interest immunity has essentially been directed to establishing:- (a) A contention that non-publication is required "to preserve the efficacy of confidential law enforcement methodology" in relation to what is described in the affidavit as "the policy/practice relating to the [XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX]" . (b) Support for the contention in (a) by reference to the suggested way or manner in which public knowledge as to the policy/practice could compromise the use of undercover operatives and give rise to risk to operatives. 6 The confidential affidavit sworn 24 March 2006, without disclosing its terms, may be said to provide what are said to be further or additional reasons for the public interest claims. 7 I have examined the material in the confidential affidavit with a view to assessing whether it sufficiently identifies the grounds or elements that are required to sustain the public interest against disclosure of the nature claimed. Specifically, consistent with what was stated by Mason, J. (as he then was) in Sankey v. Whitlam (1978) 142 CLR 1 at 96, it is necessary to determine whether the affidavit adequately states the grounds on which it is contended that the portions of the opening address and the submissions referred to in [3] should not be disclosed thereby permitting an evaluation of the claim to be made. 8 The confidential affidavit does identify the grounds relied upon. The evaluation of those grounds requires a determination as to their nature and sufficiency in terms of the claim made. Without revealing the contents of the confidential affidavit, it is sufficient to state that it contains matters which are essentially in the nature of expert opinion as to possible deleterious effects it is contended may arise from any disclosure of the practice of policy in question. 9 In assessing these matters I have sought to determine whether the opinion evidence to which I have referred is supportive or probative of the risks referred to in the "open" affidavit. In this respect, it is necessary to determine whether the evidence constitutes mere surmise or speculation as to possible risks [XXXXXXXXXX] can be said to constitute soundly based opinion as to such risks. 10 I have brought into account in considering this application the fact that police undercover methodology has, not infrequently, been the subject of disclosure in evidence in a number of criminal prosecutions. In this respect, I refer to the judgment of 22 March 2006 at [20]. 11 In paragraph [67] of that judgment, I stated that I was not persuaded that a permanent non-publication order ought to be made. However, before revoking the interim order, I indicated that I considered the proper course was to permit the Commissioner of Police to place before the Court evidence bearing upon the matter. That, as I have earlier stated, has since been done. Application of relevant principles 12 In paragraph [28] to [42] of the judgment of 22 March 2006, reference is made to the open justice principle and in paragraphs [43] to [46] to the application of relevant principles in relation to police methods and procedures. Accordingly, it is unnecessary here to repeat what was there said other than to refer briefly to particular aspects which bear upon the present application. 13 It is clear from relevant authority that the need to suppress the publication of evidence given in open proceedings of this Court should only be made where there is some important public interest consideration requiring such an order to be made: see Re applications by Chief Commissioner of Police (Vic.) for leave to appeal (2004) 9 VR 275. In other words, such an order is an exceptional one to be only made where, upon due consideration, there is a necessity to do so. Furthermore, even in those exceptional cases orders should, wherever possible, be limited and not unlimited in form. 14 The circumstances in which the present application arises is not as noted earlier one involving a question in relation to the suppression of evidence but the suppression of aspects of the opening address of senior counsel for the plaintiff and aspects of submissions made on behalf of the Commissioner of Police in relation to the question of [XXXXXXXXXX] undercover police operatives. The question is whether or not disclosure of such material would be detrimental or potentially detrimental to undercover operations and to those participating in them. 15 It has been observed that the inappropriate use of suppression (or non-publication) orders creates the potential to jeopardise both the fact and the perception of the transparency and justice of our trial processes, whether in civil or criminal matters: Re applications by Chief Commissioner of Police (Vic.) for leave to appeal (supra) at [23]. It was there also observed that where police investigative techniques do assume relevance, they have always been open to publicly conducted challenge by an accused person, at least, since the criminal trial has taken its modern form. The decision in that case and the judgment of the Supreme Court of Canada in Regina v. Mentuck [2001] 3 SCR 442, supports the general proposition that the tactics used by police and aspects of their operations are, generally speaking, matters of public interest and may, on occasions, be matters of public concern. 16 Consistent with what was stated in John Fairfax & Sons Limited v. Police Tribunal of NSW (1986) 5 NSWLR 465 at 477, the making of a non-publication order in relation to the proceedings of a court should only be made where reasonably necessary based upon material before the court upon which it can reasonably reach the conclusion that it is necessary to make the order prohibiting publication. As discussed below, this is an important matter in the present application. As there also stated by McHugh, JA. (as he then was), there must be some material before the court upon which it can reasonably reach the conclusion that it is necessary to make the order prohibiting publication and that mere belief that the order is necessary is insufficient. 17 It is clear that, particularly given the fact that the primary proceedings between the plaintiff and the defendant have been settled, a non-publication order has no significance in terms of the further conduct of the proceedings before the court. The purpose behind the application is to prevent disclosure, not of the particular use of any undercover methodology or technique in relation to a particular factual circumstance, but as a matter of generality in terms of overall policy as to [XXXXXXXXXXXXXXXXXXXXXXX]. 18 In determining the application, I consider that there are at least two propositions to be brought into account. The first is that the procedures followed by investigative agencies are, as has been observed, matters of considerable public importance and, with few exceptions, at least so far as they are relevant in curial proceedings (including, in particular, criminal proceedings), have always been exposed to public scrutiny: Re applications by Chief Commissioner of Police (Vic.) for leave to appeal (supra) at [28]. 19 The second proposition is that for a non-publication order to be made there is a need to identify a powerful public policy consideration which trumps or overrides the first of these two propositions. The second proposition may arise in the context of the principle inherent in particular statutory provisions or otherwise. In this regard, the following points may be noted:- (a) The identity of informers or undercover operatives are normally protected: Jarvie v. The Magistrate's Court of Victoria at Brunswick (1995) 1 VR 84 at 89. See also s.28 of the Law Enforcement (Control Operations) Act 1987 NSW in relation, inter alia, to orders suppressing evidence which would disclose the identity of a participant in a controlled operation. In relation to the position at common law, the protection that is afforded to informers or undercover operatives, however, must give way where the fairness of a trial itself would be compromised: see Jarvie (supra). (b) Special statutory provisions authorising suppression orders exist in relation to the victims of certain offences, to young persons and to certain family law proceedings, and the investigations or activities of certain investigative agencies. (c) The suppression of evidence adduced in a particular trial may be ordered in order to avoid injustice in relation to some related proceeding: Re applications by Chief Commissioner of Police (Vic.) for leave to appeal (supra) at [28], (although, as then noted, such suppression is normally of limited duration and operates until the related matter has been finalised). (d) Non-publication orders may be necessary to avoid public exposure of the identity of individuals who would otherwise be exposed to danger: Re applications by Chief Commissioner of Police (Vic.) for leave to appeal (supra) at [28]. 20 In dealing with cases not covered by any of the above exceptional circumstances, it has been observed that a court must be more cautious when considering a power to preclude publication that is not founded on the need to avoid prejudicing the administration of justice: Re applications by Chief Commissioner of Police (Vic.) for leave to appeal (supra) at [30]. 21 In applying relevant principle to the issue raised in the present application, the following matters are noted:- (a) The transcript references sought to be suppressed from publication as identified in Table II (see Schedule to judgment of 22 March 2006 incorporating Table II) do not strictly disclose particular operational techniques or methodologies employed in undercover or controlled operations. They relate to matters of policy and practice concerning [XXXXXXXXXXXX XXXXXXXXXXXXXX]. This is in accordance with paragraph [9] in the "open affidavit" of Mr. Scipione sworn 24 March 2006. (b) The application relates to a general issue and is not restricted to an existing or future investigation. 22 In determining whether or not a non-publication order of the kind sought is reasonably necessary such as to outweigh the open justice principle, it is, in my opinion, essential to have regard to whether disclosure of the particular transcript references would reveal information of a kind that would carry with it a real possibility of risk. This would include a risk that disclosure would provide information or material from which a relevant deduction or inference can be made, such, for example, as would permit an operative participating in an undercover or controlled operation to be detected. That question, in turn, would depend in this particular case upon the extent to which the transcript references in Table II can be said to contain specific or explicit information regarding the practice or policy. 23 I have reviewed the transcript references identified in Table II with a view to determining whether the information contained within them is of a kind referred to in [22] thus requiring suppression by a non-publication order. I have concluded that the information is not of that nature. 24 The first segment of transcript references in Table II are those contained on p.25 of the transcript between lines 30 to 34 in the opening address of senior counsel for the plaintiff. By reason of the fact that I do not wish to risk disclosure of matters that are contained therein, it is sufficient to say that those segments of transcript contain a reference by senior counsel for the plaintiff to the question [XXXXXXXXX] in less than absolute or precise or specific terms. It will be seen between lines 30 and 34 that any reference to [XXXXXXX XXXXXXX] is qualified and is expressed in other than absolute terms. 25 In relation to the transcript references at p.38, it is sufficient to say that they do not confirm the existence or content of any current day policy and were carefully framed to avoid conveying any precise relevant information on the question [XXXXXXXXX]. 26 I do not consider that publication or disclosure of the transcript references referred to in Table II would reveal relevant information on any existing policy or practice concerning [XXXXXX] or, in particular, give rise to a risk of the kind referred to in [22]. I also do not consider that the belief as to the possibility of a risk from disclosure is sufficiently supported by reference to factual material supportive of such a belief. 27 In summary, the transcript references in Table II are not, in my opinion, in their content at all revealing as to any policy that may have operation or application now or in the future. 28 It follows that I do not consider that an order should be made as sought in relation to the transcript references identified in Table II to the Schedule set out in the judgment of 22 March 2006. I have come to this conclusion, following close attention to the two affidavits of Deputy Commissioner Scipione sworn 24 March 2006, to the principles referred to above and to the content of the transcript references identified in Table II. 29 In arriving at this conclusion, I have been mindful of the importance of undercover or controlled operations as an investigative technique and the high level of importance which that technique plays in the investigation of particular classes of criminal activity. 30 In the circumstances, I consider the appropriate order is that the interim order made in these proceedings by which the Court prohibited the publication of the matter described in Table II of the Schedule to the judgment in Brennan v. State of New South Wales [2006] NSWSC 167 is continued until 10.00 am on Tuesday 18 April 2006 or, if the Commissioner of Police has by that time applied for leave to appeal against this decision, then until such time as that application is determined and, if leave is granted, the appeal is determined. 31 I accordingly make an order dismissing the application subject to the order referred to in [30] in those terms. 32 Finally, there is one additional but unrelated matter requiring determination. On 22 March 2006, counsel for the Commissioner of Police produced a document entitled "Schedule of additional references in the transcript of proceedings to matters which the Commissioner of Police contends should not be disclosed". In paragraph 5 of that document, a permanent non-disclosure order was sought in relation to:- (a) p.1: line 44: second, third and fourth word; and (b) p.2: line 48: last five words: in relation to the role of informers in undercover police operations. 33 I do not consider that a permanent non-disclosure order should be made in relation to the words identified in (a) above on p.1, line 44. 34 In relation to the references in (b) above, p.2, line 48, last five words, I consider that a permanent non-publication order should be made in respect of those words as they relate to the issue of informers which is the subject matter of Table I in relation to which I determined at [62] in the judgment of 22 March 2006 that a permanent non-disclosure order should be made in respect of passages dealing with that subject. I accordingly order that that last five words on line 48 on p.2 of the transcript of 14 March 2006 not be published. 35 I grant liberty to either party to apply on short notice. ********** 05/08/2008 - . - Paragraph(s) "Decision" section of cover sheet, paragraphs 1, 5(a), 9, 14, 17, 21(a), 24, 25, 26 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.