W v M [2011] NSWSC 1634

Supreme Court New South Wales

Medium Neutral Citation: W v M [2011] NSWSC 1634 Hearing dates: Monday, 19 December 2011 Decision date: 19 December 2011 Jurisdiction: Equity Division Before: Brereton J Decision: It will not be a contravention of the non-publication orders for the Commissioner of Police to disclose to the Director of Public Prosecutions that the Police have obtained certain information and documents the subject of a bona fide claim of client-legal professional privilege and documents the subject of a non-publication order and to provide to the Director of Public Prosecutions a copy of these reasons for judgment. It shall not be a contravention of the said orders for the Commissioner to produce in response to any subpoena for production that requires production of documents the subject of the present notice of motion, a copy of these reasons for judgment. Catchwords: COURTS AND JUDGES - Orders made restraining defendant from publishing materials that were either defamatory or an abuse of process - non-publication orders also made - materials contain scurrilous and scandalous imputations about plaintiff - defendant murdered - Commissioner of Police applies to vary order to allow disclosure of materials to Director of Public Prosecutions and defendants in committal proceedings relating to murder of defendant - question whether material disclosable under (NSW) Director of Public Prosecutions Act 1986, s 15A - police under obligation to disclose to DPP information that might reasonably be expected to assist case for the prosecution or accused - materials point to a rational hypothesis consistent with innocence of accused - materials prima facie disclosable - balancing exercise required to assess whether documents ought be disclosed - need to balance interests of plaintiff and defendants - disclosure of material would jeopardise reputation and welfare of plaintiff - material not considered relevant to Crown case against accused - not for Crown to decide what lines of inquiry accused should pursue - accused may be deprived of defence if material not disclosed - administration of justice requires disclosure of such information - likely that rights of accused to a fair trial would trump rights to plaintiff - police permitted to disclose that have such material to DPP. Legislation Cited: (NSW) Director of Public Prosecutions Act 1986, s 15A Cases Cited: A v Hayden 156 CLR 532 Brown v Brooks (Supreme Court of New South Wales, McLelland J, 18 August 1988, unreported) Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121 R v Keane [1994] 2 All ER 478 Regina v Richard Lipton [2011] NSWCCA 247 R v Spiteri (2004) 61 NSWLR 369 W v M & ors [2009] NSWSC 1084 Y and Z v W [2007] NSWCA 329; (2007) 70 NSWLR 377 Category: Principal judgment Parties: W (plaintiff) Estate of M (defendant) Commissioner of Police Representation: Counsel: Mr D S Studdy SC (plaintiff) Ms V A Evans (solicitor, defendant) Ms M England (Commissioner of Police) Solicitors: Minter Ellison (plaintiff) Uther Webster & Evans (defendant) I Knight, Crown Solicitor (Commissioner of Police) File Number(s): 2006/259543