R v Cooper [2014] NSWSC 412

Supreme Court New South Wales

Medium Neutral Citation: R v Cooper [2014] NSWSC 412 Hearing dates: 4 April 2014 Decision date: 04 April 2014 Jurisdiction: Common Law Before: Beech-Jones J Decision: 1. The application for access is dismissed. 2. The material produced to the court by the Department for Education and Child Development - Families SA be returned, together with a copy of these reasons. Catchwords: PRODUCTION OF DOCUMENTS - documents produced in answer to a purported order of the Court of Criminal Appeal - no such order - documents ordered to be returned. Legislation Cited: - Criminal Appeal Act 1912 (NSW), s 12 Category: Interlocutory applications Parties: Commonwealth Director of Public Prosecutions (Prosecutor/Respondent) Kevin Raymond Cooper (Accused/ Appellant) Representation: Counsel: Ms M. Lagana (Sol) (Prosecutor/ Respondent) D. Fitzpatrick (Sol) (Appellant/Accused) Solicitors: Director of Public Prosecutions (Cth) (Prosecutor/Respondent) Fitzpatrick Solicitors (Accused/Appellant) File Number(s): 2010/134189; 2011/123692

ex tempore Judgment 1Listed before me today is an application for access to documents that have been provided by the relevant South Australian government department which deals with child protection. 2On behalf of Kevin Raymond Cooper there has been filed in the Court of Criminal Appeal a notice of intention to appeal against his conviction. At present, his solicitor is endeavouring to obtain material to determine whether to pursue the appeal and, if so, what grounds to put forward. To that end, he is seeking to obtain material that was produced under subpoena at Mr Cooper's trial on the charge of having sexual intercourse with a child under sixteen overseas, as well as four counts of committing an act of indecency on a child under sixteen overseas. 3The Court of Criminal Appeal does not issue subpoenas. Nevertheless, pursuant to s 12 of the Criminal Appeal Act 1912 (NSW) and the Criminal Appeal Rules there is a facility for the Court to issue an "order to produce", which is Form XIV as identified in the Rules. 4On or about 28 February 2014 Mr Cooper's solicitor or his clerk attended at the Registry and filed a document in the form of a Form XIV. A "Filed" stamp was placed on it. There was provision at the bottom of the form for the fixation of a stamp to indicate that it was an order of the Court, but at that time no order was made. 5On the same day a facsimile was sent by Mr Cooper's solicitor to the Department for Education and Child Development - Families South Australia, being the government department to which I have referred. It stated, inter alia: "We enclose by way of service order to produce filed in the Court of Criminal Appeal of New South Wales today. Please send the documents to the Court as soon as possible." [The facsimile advised a postal address for the Court and stated:] "Please ensure that a copy of the order to produce is placed on top of the documents when they are sent to the Court." 6The statement that the order had been "filed in the Court of Criminal Appeal" was strictly correct. However, the impression conveyed by the facsimile was that what was enclosed was an order as made, as opposed to a proposed order that had merely been filed. 7Before me the appellant's solicitor has explained that he was unfamiliar with the practices of the jurisdiction and that this was an oversight. I am prepared to accept that. 8Subsequently, the South Australian government department produced documents. Some of them were marked "confidential", but others were not. The letter that was sent to the Court of Criminal Appeal Registry enclosing the documents included the following statement: "Objection is made to the inspection of a number of documents which have been removed from the file and placed in separate sealed envelopes marked 'CONFIDENTIAL'. In the case of documents where objection is made in respect to a portion of the document only, the Department has deleted the parts to which objection is taken, and replaced [it with] a copy with the deletions in the file. Objection is made on the basis of Section 13 of the Children's Protection Act, 1993. I have removed from those documents all parts that would or would tend to disclose the identity of a notifier. I respectfully refer the Court to S.13(1), 13(2) (13(3), 13(4) and (13(5). Privilege is claimed over the contents of the Confidential Envelopes only. I would request that the sealed envelopes be made available to the presiding Judge/Justice to consider any application to adduce evidence of the identity of a notifier, or to consider any application for inspection of other documents contained in the envelopes." The Department is content to leave the matter in the hands of the Court and does not wish to be heard further in relation to the matter." 9It is problematic when a government department writes to a court and produces materials on such terms and on such a sensitive topic. As I understand what was being suggested by the above was that objection was made to inspection of the material in the sealed envelopes, and that a request was made for a judge to consider that material if there was an application made to access any material that identified the "notifier". However, even if such an application were made, the Department was content to leave the matter in the hands of the Court and did not wish to be heard further. 10Generally in matters of that kind I would have thought there are arrangements in place with the corresponding government entities in this State that would enable someone to appear and make appropriate submissions before the Court of Criminal Appeal, if that was required. 11In any event, the outcome is that materials have been physically supplied to the Court, purportedly pursuant to an order of the Court of Criminal Appeal but in circumstances where no such order was made. In substance, the material that was produced simply represents documents in the custody of the Supreme Court as an entity. It further follows that, as a Judge constituting the Court, I am in a position to decide their fate. 12In my view, once it has been determined that the documents were produced under a false premise in the manner that I have outlined, there is simply no other course to take than to require that they be returned. If their production is still sought, then the proper processes can be engaged to ensure that happens. 13Accordingly, I dismiss the application for access. I direct that the staff of the Court take steps to return the material, together with a copy of these reasons to the Department for Education and Child Development - Families SA.