R v Medich (No 7) [2016] NSWSC 1481

Supreme Court New South Wales

Medium Neutral Citation: R v Medich (No 7) [2016] NSWSC 1481 Hearing dates: 18 October 2016 Date of orders: 18 October 2016 Decision date: 18 October 2016 Jurisdiction: Common Law Before: Bellew J Decision: See [13] Catchwords: CRIMINAL LAW – Practice and Procedure – Subpoenas – Claim for public interest immunity Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: Conway v Rimmer [1968] AC 910 Sankey v Whitlam (1978) 142 CLR 1; [1978] HCA 43 Category: Procedural and other rulings Parties: NSW Crime Commission – Applicant Ronald Edward Medich – Respondent Representation: Counsel: R W McIlwaine (Solicitor) – Applicant WC Terracini, M Curry and S Schaudin – Respondent

Solicitors: Crown Solicitor NSW – Applicant Colin Daley Quinn Solicitors – Respondent File Number(s): 2010/356916 Publication restriction: Nil

Judgment – EX TEMPore (REVISED) 1. On 25 July 2016, at the request of the accused, I issued a subpoena directed to Commissioner Peter Hastings of the New South Wales Crime Commission ('the Commission'). The subpoena sought production of the documents enumerated in paragraphs 1-8 inclusive of a schedule which was attached to it. It seems that the scope of the documents of which production was sought was narrowed by negotiation between the parties, as a consequence of which some material was produced to the Court on 19 August 2016. I have previously made orders allowing the parties access to that material. 2. There remain two documents falling within the terms of the schedule which have not been produced. A notice of motion was filed on 4 October 2016 on behalf of the Commission seeking orders that it be excused from producing specific parts of the two documents, on the basis that they attract a claim of public interest immunity. In support of that notice of motion two affidavits of Peter Bodor QC, Assistant Commissioner at the Commission have been filed. One of those affidavits is an open affidavit. The other is a confidential affidavit, annexed to which is a confidential exhibit PB-1. The filing of a confidential affidavit accords with the normal practice under which claims for public interest immunity are resolved. 3. Mr Bodor's confidential affidavit annexes unredacted copies of the two documents in question, parts of which are highlighted in yellow. It was initially the case that the highlighted parts were those which were the subject of the claim. However documents in a less redacted form have been handed to me this morning and I have been informed by the solicitor for the Commission that those documents are in a form in which the Commission is prepared to produce them. 4. The Commission's claim is governed by s. 130 of the Evidence Act 1995 (NSW) which is in the following terms: 130 Exclusion of evidence of matters of state (1) If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence. (2) The court may give such a direction either on its own initiative or on the application of any person (whether or not the person is a party). (3) In deciding whether to give such a direction, the court may inform itself in any way it thinks fit. (4) Without limiting the circumstances in which information or a document may be taken for the purposes of subsection (1) to relate to matters of state, the information or document is taken for the purposes of that subsection to relate to matters of state if adducing it as evidence would: (a) prejudice the security, defence or international relations of Australia, or (b) damage relations between the Commonwealth and a State or between 2 or more States, or (c) prejudice the prevention, investigation or prosecution of an offence, or (d) prejudice the prevention or investigation of, or the conduct of proceedings for recovery of civil penalties brought with respect to, other contraventions of the law, or (e) disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State, or (f) prejudice the proper functioning of the government of the Commonwealth or a State. (5) Without limiting the matters that the court may take into account for the purposes of subsection (1), it is to take into account the following matters: (a) the importance of the information or the document in the proceeding, (b) if the proceeding is a criminal proceeding-whether the party seeking to adduce evidence of the information or document is a defendant or the prosecutor, (c) the nature of the offence, cause of action or defence to which the information or document relates, and the nature of the subject matter of the proceeding, (d) the likely effect of adducing evidence of the information or document, and the means available to limit its publication, (e) whether the substance of the information or document has already been published, (f) if the proceeding is a criminal proceeding and the party seeking to adduce evidence of the information or document is a defendant-whether the direction is to be made subject to the condition that the prosecution be stayed. (6) A reference in this section to a State includes a reference to a Territory. 1. The provisions of s. 130, generally speaking, are consistent with the common law principles governing applications of this nature, as set out in Sankey v Whitlam (1978) 142 CLR 1; [1978] HCA 43 and Conway v Rimmer [1968] AC 910. The ultimate determination of the claim requires that I carry out a balancing exercise, although that balancing exercise is in fact the third step in the process that I am required to undertake. The first step is to determine, and have identified, a legitimate forensic purpose for seeking the material. The second is to identify, in as precise terms as possible, the nature of the claim for immunity, and the category or the categories of public interest immunity into which the material in question is said to fall. 2. Having read the material in its unredacted form, I am prepared to accept that there is a legitimate forensic purpose in seeking it, given the issues (as I understand them to be) in the accused's trial. 3. As to the second step, there are, as set out in written submissions provided on behalf of the Commission, a number of recognised categories of public interest immunity. For obvious reasons, I do not propose to disclose the particular category or categories into which the present material may fall. However I am satisfied, having read the confidential affidavit of Mr Bodor, that the parts of the documents in respect of which a claim is made fall within one or more of those categories. 4. That leads me to the balancing exercise which has to be carried out. Firstly, it might be said that there is some degree of importance attaching to some of the material. However in my view, its importance and significance, in light of the issues in this trial, are limited. In making that observation, I have taken into account the submission made by senior counsel for the accused that part of the material appears to have emanated from an approach made to the Commission on behalf of the accused. 5. The nature of the offences with which the accused is charged are obviously serious. It is important, for that reason, that the accused be given access to such material as may advance his or her defence, within the bounds of what is necessary or appropriate. However as I have said, I have formed the view that the significance of this material is somewhat limited. 6. The likely effect of the material being disclosed is set out in the confidential affidavit of Mr Bodor. That effect is another factor which is relevant to the balancing exercise. Again, for obvious reasons, I do not propose to set out the likely effect of disclosure of the material. I am satisfied that such effect is significant in a number of differing respects. 7. Another matter which is relevant to the balancing exercise is whether or not the substance of the information has already been published in some form or another. For very good reason, no such publication has taken place. 8. The end result, taking into account all of those factors in the balancing exercise, is that I am satisfied that such factors weigh heavily in favour of the Commission's claim being upheld, and thus heavily in favour of the making of the orders sought in the notice of motion. 9. For those reasons I make the following orders: 1. The New South Wales Crime Commission is to be excused from producing those parts of the two documents caught by the schedule to the subpoena issued on 25 July 2016 as attract the claim for public interest immunity.