Polley v Johnson and Smith Gillard v Johnson and Smith Ward and Ward v Higgs, Smith and Edwards [2013] NSWSC 543

Supreme Court New South Wales

Medium Neutral Citation: Polley v Johnson and Smith Gillard v Johnson and Smith Ward and Ward v Higgs, Smith and Edwards [2013] NSWSC 543 Hearing dates: 30 April 2013 Decision date: 15 May 2013 Jurisdiction: Common Law Before: Bellew J Decision: (1)In each of proceedings 2012/ 271291(referred to in the judgment as "the Gillard proceedings") and proceedings 2012/271413 (referred to in the judgment as "the Polley proceedings"): (i)there shall be no access to the documents produced to the court by the second defendant pursuant to the notice to produce first returnable on 19 September 2012, on the basis of public interest immunity; (ii)the documents referred in order 1(i) shall be placed on the court file and sealed in an envelope marked "not to be opened, save by order of a Judge of this Court"; (iii)the confidential affidavit of Alan John Clarke sworn 20 December 2012 along with confidential exhibits AJC-1 and AJC-2, such documents forming part of exhibit A in the proceedings before me, are returned to the Commissioner of Police herewith. (2)In proceedings 2012/292276 (referred to in the judgment as "the Ward proceedings"): (i)there shall be no access to the documents produced to the court by the second and third defendants pursuant to notices to produce first returnable on 2 October 2012, on the basis of public interest immunity; (ii)the documents referred to in order 2(i) above shall be placed on the court file in an envelope marked "not to be opened save by order of a Judge of this Court"; (iii)the confidential affidavit of Peter Edward Dein sworn 22 November 2012 along with confidential affidavits PED-1 and PED-2, which formed exhibit B in the proceedings before me, are returned to the Commissioner of Police herewith. Catchwords: PUBLIC INTEREST IMMUNITY - where principal proceedings challenge validity of search warrants and crime scene warrant - where notice to produce issued seeking documents relevant to the issue of warrants - where claim for public interest immunity made over part of the material - need to establish legitimate forensic purpose - whether stated purpose amounted to "fishing" - no legitimate forensic purpose established - where balancing exercise would have favoured the claim being upheld in any event - claim upheld. Legislation Cited: Crimes Act 1900 Evidence Act 1995 Firearms Act 1996 Law Enforcement (Powers and Responsibilities) Regulations 2005 Cases Cited: Air Canada v Secretary of State for Trade [1983] 2 AC 394 Alister v R [1984] HCA 35; (1984) 154 CLR 404 Attorney-General (NSW) v Chidgey [2008] NSWCCA 65; (2008) 182 A Crim R 536 Attorney-General (NSW) v Lipton [2012] NSWCCA 156 Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667 Derbas v R [2012] NSWCCA 14 George v Rockett [1990] HCA26; (1990) 170 CLR 104 Hilton v Wells and ors (1985) 59 ALR 281 R v De Bono [2012] v VSC 476 R v Saleam [1999] NSWCCA 86 R v Tastan (1994) 75 A Crim R 498 Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1 State of NSW v Public Transport Ticketing Corporation [2011] NSWCA 60 Category: Procedural and other rulings Parties: PROCEDINGS 2012/271413 Michelle Elizabeth Polley - Plaintiff Belinda Johnson - First Defendant Holly Wraith Smith - Second defendant