NSW Police Force v McKellar, Nerida; NSW Police Force v Knight, Mark [2015] NSWLC 8

Local Court New South Wales

Medium Neutral Citation: NSW Police Force v McKellar, Nerida; NSW Police Force v Knight, Mark [2015] NSWLC 8 Decision date: 01 June 2015 Jurisdiction: Criminal Before: Stewart LCM Decision: Application granted. Catchwords: CRIMINAL LAW - public interest immunity claim - surveillance device warrant - use of assumed identity - purpose of installation - methods of installation - illegally obtained evidence - improperly obtained evidence - procedural fairness - interests of justice - confidential affidavit - legitimate forensic purpose Legislation Cited: Evidence Act 1995 (NSW), ss 130, 138 Surveillance Devices Act 2007 (NSW), ss 21, 23, 42 Cases Cited: Attorney General for NSW v Stuart (1994) 34 NSWLR 667 R v Saleam [1999] NSWCCA 86 Sankey v Whitlam (1978) 142 CLR 1 Young v Quin & Ors (1985) 59 ALR 225 Category: Procedural and other rulings Parties: NSW Police Force (Applicant) Nerida McKellar (Respondent) Mark Knight (Respondent) Representation: Crown Solicitor's Office (Applicant) Mr J C Thompson (Counsel for the Respondents) File Number(s): 2012/314330; 2012/345059 Publication restriction: s 42(5), Surveillance Devices Act 2007 (NSW)

​J​​UDGMENT 1. On 14 August 2012, a surveillance device warrant for premises at 33 Tudor Street, Bourke, was issued. On 16 August 2012, police installed a listening device and an optical device in those premises. 2. The respondents were subsequently charged with serious drug-related offences to which they pleaded not guilty. For reasons not relevant to the present application, the hearing of those charges is yet to take place. 3. Counsel for the respondents foreshadowed an intention to challenge the admissibility of the surveillance device product. The Commissioner of Police made an application for public interest immunity pursuant to s 130 of the Evidence Act 1995 (NSW) ("Evidence Act") to prevent two police officers from having to answer questions in cross-examination which could reasonably be expected to reveal details of surveillance device technology, or methods of installation. 4. Upon the Court being closed, the application proceeded and the following items were tendered: 1. Statement of Leading Senior Constable T Tenkate (Ex 1) 2. Statement of Senior Sergeant M Hayes (Ex 2) 3. Copy of Surveillance Device Warrant SD12/0502 (Ex 3) 4. Open affidavit of Assistant Commissioner M Lanyon (Ex 4) 5. Confidential Affidavit of Assistant Commissioner M Lanyon (Ex 5) [over objection] 1. The applicant submitted that there is a three stage process in relation to a claim of public interest immunity. The first step is for the respondents to establish a legitimate forensic purpose, and that it is "on the cards" that cross-examination would materially assist their case. This step is in fact the test from R v Saleam [1999] NSWCCA 86 at [11] which dealt with subpoenas rather than oral evidence, however has application in this type of matter. 2. It was said that if a legitimate forensic purpose is demonstrated, the next step is to establish a claim of immunity. I note however that a claim of public interest immunity is not limited to the Crown and could be made for example by the Court: see Attorney General for NSW v Stuart (1994) 34 NSWLR 667 at 690 per Smart J; Young v Quin & Ors (1985) 59 ALR 225 at 227 per Bowen CJ; Sankey v Whitlam (1978) 142 CLR 1 at [44] per Gibbs ACJ. Accordingly, a court might step in without waiting for a legitimate forensic purpose being demonstrated so as to prevent disclosure. So much is also evident from ss 130(2) and (3) of the Evidence Act. 3. Finally, the Court must balance the public interest in withholding access to documents or information, against the public interest in ensuring that courts performing the functions of justice should have access to relevant evidence: Sankey v Whitlam (supra) at [37] - [50]. I note that the remarks in Sankey v Whitlam (supra) were confined to the application of principles to documentary evidence, though they "apply in relation to oral as well as to documentary evidence": at [36]. Section 130(1) of the Evidence Act sets out the relevant test [see below]. 4. The statements of police (Exs 1 and 2) did not provide any detail of what happened between the time of attending the premises and the commencement of installation of the surveillance device. Cross-examination was sought to obtain that detail. It was submitted that there was subterfuge by police in a manner not contemplated, nor allowed, by legislation, giving rise to a challenge to the admissibility of evidence on grounds of illegality or impropriety under s 138 of the Evidence Act.