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 Judgment (ex tempore) 1HIS HONOUR: On 17 November 2009, I made orders, which were subsequently varied by the Court of Appeal [see Y and Z v W [2007] NSWCA 329; (2007) 70 NSWLR 377], which restrained Y and Z until further order from: 1.1 Publishing to any person: (a) any imputation of and concerning [W] that she has had a sexual relationship with A; (b) any imputation of and concerning [W] that she has offered A's former wife a sum of money in return for her agreeing to divorce him; (c) any other imputation of and pertaining to [W] which is calculated to expose her to hatred, ridicule and contempt. 1.2 Publishing or disclosing to any person or institution any information or allegation of and concerning [W]. 1.3 Communicating to [W], directly or indirectly, any threat to make any publication or disclosure referred to in Orders 1.1 and 1.2, and/or any request or demand for payment or other benefit in return for not making any such publication or disclosure. 1.4 Publishing or disclosing, to any person or institution, these proceedings, these orders, the identity of [W], or anything which might identify her as a party to these proceedings. 2The Court of Appeal varied those orders by deleting order 1.2 and by removing from order 1.3 the reference to order 1.2. On 29 May 2008 I made, ultimately by consent, more specific orders in substitution for those orders. I do not set them out in full in this judgement, as their specificity in respect of the imputation pertaining to W is such that they might tend to identify W. 3On 9 September 2009, I made an order, which was varied on 9 October 2009, following an application made by media interests, that until further order it was prohibited to publish or disclose, in any form whatsoever (a) any information including the subject matter of these proceedings which would directly or indirectly reveal or tend to reveal the identity or facilitate the identification of any party to any witness in these proceedings, and (b) any evidence given or submission made in these proceedings and the contents of any document filed or served or tendered in connection with them (including any schedule, annexure or exhibit thereto) save insofar as the same is reproduced in the reported judgment of the Court of Appeal in Y and Z v W [2007] NSWCA 39, (2007) 70 NSWLR 377 or in this judgment. On 16 September 2009, I joined an additional defendant to the proceedings and made against that defendant orders similar to those that had previously been made against Y and Z. 4On 19 April 2010 I made orders as follows: 1. Order that the Orders made on 16 September and 9 October 2009 be varied so that, subject to order 2 below, they do not prohibit police officers assigned to Strike Force N communicating with any of (a) the third defendant, (b) Mr A H, (c) Mr R Y, and/or (d) W, for the purpose of providing evidence for use in the investigation into the murder of the first defendant and using any information obtained as a result of such communication as they deem appropriate in relation to such investigation. 2. The variation contained in Order 1 permits communications to which it applies only upon condition that prior to any such communication the office[r] in charge of Strike Force N Detective Sergeant F has informed the solicitors for W and the solicitors for the third defendant which officers he has nominated to communicate with (a) the third defendant, (b) Mr A H, (c) Mr R Y, and/or (d) W. 3. Reserve liberty to apply to vary these orders by arrangement with the Associate to Brereton J on such notice as to the Court may seem appropriate. 5On 20 May 2011, I made orders as follows: 1. By way of variation of orders made on 19 April 2010 herein those orders do not prohibit: (a) the police officers assigned to Strike Force N and the staff of the Office of General Counsel of the NSW Police Force disclosing to or communicating with: (i) the Commissioner of Police; and (ii) the Crown Solicitor; and (iii) the staff of the Community Law Practice Group of the Crown Solicitor's Office; and (iv) Counsel instructed by the Crown Solicitor for the Commissioner of Police the information regarding these proceedings obtained by them in their investigation into the murder of the First Defendant, and (b) from communicating between themselves any information disclosed to them pursuant to sub-paragraph (a) above. 2. Until further order, any information provided pursuant to order 1 above is only to be used for the purpose of the Commissioner of Police being provided with legal advice in respect of the orders made in the proceedings as to: 2.1 the operation of the orders made in these proceedings; 2.2 any application to seek to further vary these orders; and 2.3 for the purposes of the Commissioner of Police being provided with legal representation in respect of any application to vary the injunction. 3. The matter is adjourned to 14 September 2011 at 9:30am. 4. Reserve liberty to apply by way of arrangement with His Honour Brereton J's Associate. 6By notice of motion filed on 13 September 2011 and amended today, the Commissioner of Police now seeks, relevantly, the following orders: 2. That the non-publication order made by the Court in these proceedings on 16 May 2011 be further varied to permit the police officers assigned to Strike Force N to disclose to each of: (a) The Director of Public Prosecutions, and his servants, agents and officers; (b) The five defendants in the committal proceedings Director of Public Prosecutions v LG , and their legal representatives; the documents referred to in the schedule annexed to this Motion and marked with the letter "A" and the documents contained in Confidential Exhibit 'MSF-2' to the affidavit of F sworn on 21 September 2011. 7The application is made in circumstances that the police are of the view that their obligation of disclosure to the Director of Public Prosecutions under (NSW) Director of Public Prosecutions Act 1986, s 15A, and to defendants against whom a prosecution for murder has been commenced (who, for convenience, I shall call, not quite accurately, "the accused") requires disclosure of the material referred to in the notice of motion. In respect of some of that material, M's estate claims legal professional privilege. That claim is not opposed. In respect of all of the material, W opposes disclosure on the basis that W's interest in restricting its circulation outweighs the interest in disclosure, if indeed the documents are disclosable. 8It is therefore convenient first to deal with the question as to whether the documents are disclosable. The Director of Public Prosecutions Acts, s 15A, relevantly provides as follows: (1) Police officers investigating alleged indictable offences have a duty to disclose to the Director all relevant information, documents or other things obtained during the investigation that might reasonably be expected to assist the case for the prosecution or the case for the accused person. (2) The duty of disclosure continues until one of the following happens: (a) the Director decides that the accused person will not be prosecuted for the alleged offence, (b) the prosecution is terminated, (c) the accused person is convicted or acquitted. (3) Police officers investigating alleged indictable offences also have a duty to retain any such documents or other things for so long as the duty to disclose them continues under this section. This subsection does not affect any other legal obligation with respect to the possession of the documents or other things. (4) The regulations may make provision for or with respect to the duties of police officers under this section, including for or with respect to: (a) the recording of any such information, documents or other things, and (b) verification of compliance with any such duty. (5) The duty imposed by this section is in addition to any other duties of police officers in connection with the investigation and prosecution of offences. (6) The duty imposed by this section does not require police officers investigating alleged indictable offences to disclose to the Director any information, documents or other things that are the subject of a bona fide claim of privilege, public interest immunity or statutory immunity. The duty of police officers in such a case is to inform the Director that they have obtained information, documents or other things of that kind. (7) Subsection (6) ceases to have effect on 1 January 2013. 9It has been said that this section replicates the common law duty of police and prosecutors to make disclosure to a defendant in criminal proceedings [see R v Richard Lipton [2011] NSWCCA 247; R v Keane [1994] 2 All ER 478; R v Spiteri (2004) 61 NSWLR 369]. That said, s 15A imports a structure into the decision-making process, so far as disclosure is concerned, in that the police are required to disclose to the Director "all relevant information" etcetera "that might reasonably be expected to assist the case for the prosecution or the case for the accused person", and it then becomes a matter for the Director to determine whether and to what extent to make a further disclosure to the defendants. 10I accept that for the purposes of s 15A(1), particularly in a case based wholly or partly on circumstantial evidence, as the case against the defendants in the criminal proceedings appears to be, documents that might point to the existence of a rational hypothesis consistent with the innocence of the accused must be "reasonably... expected to assist the case for the accused person". 11It will be borne in mind that, in the present case, W obtained the injunctive relief and the non-publication order to which I have alluded on the basis that publication of the material in question would have been an abuse of process or contempt of court, in endeavouring to impose illegitimate pressure on a party to other proceedings in the court, and also on the basis that publication would have been defamatory of W. It is also to be borne in mind that the Court of Appeal upheld my original orders primarily, if not exclusively, on the basis of abuse of process rather than defamation. But at the core of W's claim was fear of the consequences for her should the relevant imputations be published. 12The very same reasons that motivated W to obtain the relief she pursued in these proceedings could be said to provide W with a motive for the crime with which the accused in the criminal proceedings have been charged. There is not otherwise the slightest evidence to implicate her; and the police investigation has concluded that there is nothing to suggest any involvement on her part. Nonetheless, it is not for the police to conclude what lines of inquiry the defendants might reasonably pursue, nor for that matter ultimately is it for the Director to do so. The matters that lie at the heart of the present proceedings could provide a rational hypothesis consistent with innocence that the accused might wish to investigate. It is conceivable that they could provide a legitimate basis for an acquittal in the proceedings against them. In those circumstances, I am satisfied that the subject documents are prima facie disclosable under s 15A(1). 13As a result of the decision of the Court of Criminal Appeal in R v Lipton, s 15A was amended to include s 15A(6), set out above. The estate's claim for privilege is one of legal professional privilege in respect of a substantial portion of the documents which would otherwise be disclosable. If that were the only basis upon which objection to disclosure were to succeed, the extent of the Commissioner's obligation under s 15A(6) would be to inform the Director that police had obtained information, documents or other things that were the subject of a bona fide claim of legal professional privilege made by the estate of M. 14Beyond that, W argues that balancing the competing interests of W and the accused, disclosure ought not be permitted, that is to say the orders already made in these proceedings ought not be further varied so as to permit disclosure of the documents not otherwise precluded from disclosure by the claim of privilege. 15In undertaking this exercise it is necessary first to be conscious that the accused, whose interests are being weighed against W's, are not party to the present proceedings, are not before the court and are not in a position to advance arguments as to why disclosure should occur. Bearing that in mind, I have done the best I can to consider the arguments that, if present, they might have advanced. 16The potential damage to W if disclosure is granted is no doubt enormous. A reading of the earlier judgements in these proceedings and of the judgment of the Court of Appeal will show why. In the judgment which resulted in the non-publication order following the intervention of media interests [ W v M & ors [2009] NSWSC 1084] I observed (at [24]): In my judgment, publication of the fact, existence, pendency and/or subject matter of the present proceedings, or information derived from them, such as to permit or facilitate identification of W, would defeat the ends of justice. Publication of the imputations in that context would adversely affect her reputation... I am satisfied that, having regard to the nature of the imputations and W's status, there is a serious risk of jeopardy to her reputation... and her welfare. 17In addition, as has been pointed out, the material in question is not relevant to the case that the Crown seeks to make against the accused. Further, the police inquiry has excluded the hypothesis to which such disclosure might give rise. 18Against that, the potential harm to the accused is that, in criminal proceedings of the utmost gravity, they might be deprived of a defence reasonably open to them, that might raise a reasonable doubt as to their guilt, entailing that they might be deprived of a legitimate opportunity of an acquittal. That is exacerbated by the fact that they are charged with the most serious offence under the criminal law with the highest maximum penalty. Although, as I have observed, the police investigation has excluded, in the minds of the police, the hypothesis to which the material in question might give rise, that cannot be given much weight in circumstances where it is not for the police to decide which lines of inquiry and defence the accused pursue. 19In A v Hayden 156 CLR 532 Mason J, as the later Chief Justice then was, said (at 555): ... the effective enforcement of the criminal law and the administration of justice, which are central elements in a well ordered democratic society, depend for their efficacy on the unrestricted freedom of each and every citizen to assist and co-operate with the authorities in the investigation and prosecution of crime. 20Deane J stated the practical consequence of that principle (at 595) to be: ... the courts of this country will not lend their aid to enforce a promise not to disclose information where the circumstances are such that enforcement or insistence upon observance of the promise would obstruct the due administration of the criminal law of Australia, whether Commonwealth or State. The rationale of that proposition is that, apart from the exceptional case (such as that of professional legal adviser) where the overall administration of the law itself requires that confidentiality be maintained, it would be contrary to public policy for the courts to enforce a right on the part of one person to insist that another fail or refuse to disclose relevant information to assist those entrusted with the ordinary administration of the criminal law in the proper investigation and prosecution of criminal activity: the enforcement by the courts of such a private right to insist that another fail or refuse to disclose relevant information would involve the courts in the obstruction of the due administration of the criminal law which is a mainstay both of the rule of law which they exist to serve and of the very existence of effective private rights. 21In Brown v Brooks (Supreme Court of New South Wales, McLelland J, 18 August 1988, unreported) McLelland J observed of Deane J's statement in A v Hayden: That statement refers to a promise not to disclose information. Identical considerations apply to an obligation not to disclose information arising from the operation of general equitable principles, as in the present case. 22That case, which involved the imparting of what was in effect a confession of guilt of a sexual offence to a person in the position of a medical advisor, saw the obligation of confidentiality overridden. His Honour said: I accept that there is a degree of public interest in maintaining the confidentiality of consultations between such persons as patient and medical adviser, but I consider that that circumstance is not sufficient to justify enforcement of an obligation of confidentiality in respect of information relevant to the proper investigation and prosecution of serious criminal activity. The position may well be different in the case of a trivial offence.... But on any view the offences with which the plaintiff is charged are serious... and in such circumstances enforcement of an obligation of confidentiality would involve an impermissible obstruction of the due administration of the criminal law. For these reasons I order that the application for an interlocutory injunction be dismissed with costs... 23Although those cases were concerned with confidentiality as an impediment to the effective prosecution of offences, I cannot conceive that greater weight is given to the availability of information to assist the prosecution of offences than to assist the defence of accused persons. Indeed, the observations of Deane J in particular, referring as they do to the proper investigation and prosecution of criminal activity, and the obstruction of the due administration of the criminal law, allows on any reading that the proper prosecution and non-obstruction of administration of the law gives due weight to the position of accused persons as well as to prosecutors. 24Deane J recognised the exception of cases where the overall administration of the law itself required that confidentiality be maintained, citing the example of a professional legal advisor. That, of course, involves questions of legal professional privilege which, unlike mere obligations of confidentiality, do not prevail against a legal obligation to disclose information [see Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121]. 25There is, in the context of the present case, a most difficult balance to be struck between the two competing interests, on the one hand potentially grave damage to W, in whose protection to this point enormous forensic and judicial effort has been invested, not only in this country but overseas also, and, on the other, the deprivation of accused persons of what might be a legitimate opportunity of acquittal for the most serious criminal charges. If the matter had to be resolved absolutely at this point, I could not escape the conclusion that our law views the rights of accused persons with such tenderness that they would have to prevail over the rights of W. But it seems to me that, consistent with the approach to be taken in respect of privileged documents, there is a middle ground which, at least for the time being, might avoid the potentially drastic consequences of complete disclosure. What I propose is that, akin to the position in respect of the privileged documents, the police should be permitted to disclose to the Director of Public Prosecutions that they have in their possession information etcetera that is subject to non-publication orders made in the present proceedings. It will then be for the Director to decide what further steps ought be taken in that regard. 26I will make orders as follows: (1)Order that it will not be a contravention of the non-publication orders made on 9 September (as varied on 9 October 2009 and as subsequently varied, including by the orders of 19 April 2010 and 16 May 2011) for the Commissioner of Police to disclose to the Director of Public Prosecutions, pursuant to (NSW) Director of Public Prosecutions Act 1986, s 15A(1) and s 15A(6), that the Police have obtained: (a) information documents and other things that are the subject of a bona fide claim of client-legal professional privilege by the estate of M; (b) information documents and other things that are subject to the said non-publication orders made in the present proceedings; (c) and to provide to the Director of Public Prosecutions a copy of my reasons for judgment of today. (2)Order that it shall not be a contravention of the said orders for the Commissioner of Police to produce, in response to any subpoena for production issued in the criminal proceedings that requires in whole or in part the production of documents the subject of the present notice of motion, a copy of my reasons for judgment of today. (3)Direct that the exhibits be returned. (4) Direct that these orders be entered forthwith. ********** 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. Decision last updated: 23 January 2012