Supreme Court New South Wales Medium Neutral Citation: R v Sparos [2018] NSWSC 712 Hearing dates: 14 May 2018 Date of orders: 21 May 2018 Decision date: 21 May 2018 Jurisdiction: Common Law Before: Harrison J Decision: (1) Uphold the Commissioner's claim for public interest immunity in relation to the undisclosed portion of the document known as IN264. (2) Direct under s 130(1) that IN264 not be adduced in this trial. (3) Set aside paragraph 4 of Mr Sparos' subpoena to the extent that the Commissioner is not required to produce IN264. Catchwords: EVIDENCE – privilege – public interest immunity – matters of state – subpoena – criminal proceedings – whether public interest in confidentiality outweighs public interest in disclosure to the accused – where document relates to a confidential source of information – where disclosure may prejudice the prevention, investigation or prosecution of an offence – where document contains irrelevant material – public interest immunity upheld Legislation Cited: Evidence Act 1995 (NSW), s 130 Cases Cited: Alister v The Queen (1984) 154 CLR 404; [1984] HCA 85 Attorney General (NSW) v Kaddour & Turkmani [2001] NSWCCA 456 Attorney General (NSW) v Lipton (2012) 224 A Crim R 177; [2012] NSWCA 156 Attorney General for New South Wales v Smith (1996) 86 A Crim R 308 Attorney General for New South Wales v Stuart (1994) 34 NSWLR 667 Beneficial Finance Corporation Ltd v Commissioner of Australian Federal Police (1991) 51 A Crim R 423 Eastman v R (1997) 76 FCR 9 Gardiner v R (2006) 162 A Crim R 233; [2006] NSWCCA 190 Obeid v Ipp (2012) 224 A Crim R 177; [2012] NSWCA 156 Public Transport Ticketing Corporation v Integrated Transit Solutions [2010] NSWSC 607 R v Abdullah [1999] NSWCA 188 R v Sparos [2018] NSWSC 711 Ryan v Victoria [2015] VSCA 353 State of New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60 Category: Procedural and other rulings Parties: Commissioner of Police (Applicant) Luke John Sparos (Respondent) Representation: Counsel: R Grady (Commissioner of Police) C Smith SC with D Carroll (Accused) Solicitors: Crown Solicitor's Office (Commissioner of Police) Kiki Kyriacou Lawyers (Accused) File Number(s): 2014/196615 Publication restriction: Nil Judgment 1. HIS HONOUR: On 14 February 2018, Mr Sparos caused a subpoena for production to be issued to the Commissioner of the NSW Police Force. Paragraph 4 of the subpoena for production requests production of: "Copies of all notes prepared by Detective Mr Dipple and another unidentified detective, who attended upon Witness E whilst he was incarcerated at the Long Bay Hospital Correction Centre after Maika was killed. (As referred to in paragraph 10 of Witness E's Statement dated 31 August 2017)." 1. On 24 April 2018, the Commissioner produced a redacted version of a document known as IN264 to Mr Sparos. This document is a contemporaneous record of an interview with Witness E. 2. By notice of motion dated 27 April 2018, the Commissioner seeks to set aside paragraph 4 in part, to the extent that the Commissioner not be required to produce further documents or parts of documents that might be caught by the paragraph upon the ground that there is no discernible legitimate forensic purpose to require production of such material. Alternatively, the Commissioner argues that the document caught by paragraph 4 is subject to a claim for public interest immunity. 3. The Commissioner's notice of motion is supported by an affidavit of Karen Leanne Webb, the Assistant Commissioner of Police, Transport and Public Safety Command, sworn on 24 April 2018 as well as her confidential affidavit of the same date and a confidential affidavit of Kyle Stewart, the Acting Assistant Commissioner, Commander of Major Events and Incidents Group, sworn on 31 May 2016. Background 1. The facts giving rise to this trial are outlined in R v Sparos [2018] NSWSC 711. 2. The existence of IN264 was first alluded to in the cross-examination of Detective Joe Maree on 27 May 2016. Detective Maree indicated that Witness E had been spoken to in relation to intelligence that sweepers within the Long Bay Correctional Complex were conspiring to murder a Crown witness. Detective Maree confirmed the existence of a note of that conversation but noted that it was subject to a claim for public interest immunity. 3. The Commissioner's claim for public interest immunity was upheld by Adams J on 31 May 2016. Importantly, at that time, Witness E was not a Crown witness. 4. The Crown now intends to call Witness E to give evidence in this trial. Witness E has provided a statement to police dated 31 August 2017, in which he outlines, amongst other things, his views about particular inmates at Long Bay gaol. Witness E also specifically denies being involved in the murder of Mr Maika. Public interest immunity 1. Section 130 of the Evidence Act 1995 relevantly provides: "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: … (c) prejudice the prevention, investigation or prosecution of an offence, 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 … (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." 1. Section 130 closely reflects the common law governing public interest immunity: Eastman v R (1997) 76 FCR 9 at 63; State of New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60 at [43]; Ryan v Victoria [2015] VSCA 353 at [58]. 2. In Alister v The Queen (1984) 154 CLR 404; [1984] HCA 85 at 412, Gibbs CJ stated the test for determining public interest immunity claims as follows: "[W]hen one party to litigation seeks the production of documents, and objection is taken that it would be against the public interest to produce them, the court is required to consider two conflicting aspects of the public interest, namely whether harm would be done by the production of the documents, and whether the administration of justice would be frustrated or impaired if the documents were withheld, and to decide which of those aspects predominates. The final step in this process – the balancing exercise – can only be undertaken when it appears that both aspects of the public interest do require consideration - ie, when it appears, on the one hand, that damage would be done to the public interest by producing the documents sought or documents of that class, and, on the other hand, that there are or are likely to be documents which contain material evidence. The Court can then consider the nature of the injury which the nation or the public service would be likely to suffer, and the evidentiary value and importance of the documents in the particular litigation." 1. Although Alister predates the enactment of s 130, its statement of the process for determining public interest immunity claims remains applicable: see Obeid v Ipp [2015] NSWSC 1755 at [21]; Attorney General (NSW) v Lipton (2012) 224 A Crim R 177; [2012] NSWCA 156 at [39]. 2. In making a determination under s 130(1), the Court is to have regard to the matters referred to in s 130(5). 3. The Court may also "inform itself in any way it thinks fit": Evidence Act, s 130(3). In Attorney General (NSW) v Kaddour & Turkmani [2001] NSWCCA 456 at [20], Sully J said: "His Honour was entitled to have full regard to what was said in the various Confidential Statements; and to take the contents of those Statements fully into account without disclosing in any way or to anybody the contents of the Confidential Statements." 1. Accordingly, I have read and taken into account the contents of the unredacted document known as IN264 and the confidential affidavits supporting the Commissioner's notice of motion. The Commissioner's submissions 1. The Commissioner contends that the undisclosed portion of the document has little relevance to the present proceedings and in any case it is subject to a claim for public interest immunity. Mr Grady of counsel for the Commissioner says that the description of the document is misleading. Aside from the paragraph that has already been disclosed, the document does not contain information relating to the murder of Mr Maika. 2. Mr Grady further contends that the remainder of the document should not be disclosed as a result of concerns set out in the confidential affidavit of Kyle Stewart. 3. The Commissioner relies upon ss 130(4)(c) and (e) to support its claim for public interest immunity. Mr Sparos' submissions 1. Mr Sparos contends that the undisclosed information in the document is of "critical importance" to the defence case. 2. Mr Carroll's submissions can be summarised as follows: 1. The disclosed paragraph of IN264 indicates that Witness E had a conversation with Mr Sparos about Mr Maika. Even if Witness E has since forgotten about that conversation, the disclosed paragraph indicates that, at the time of the interview, Witness E recalled specifically having this conversation with Mr Sparos. Accordingly, any information relating to that conversation and what was said may be significant to the defence case. 2. Even if the information in the document is not directly related to these proceedings, the fact that Witness E has given information to the police is significant as it goes to his credibility. Mr Carroll indicates that there have already been some material inconsistencies in what Witness E has told the police. 3. Further, Mr Carroll contends that Witness E may have sought to provide a false version of what he knew by giving police information about people who have little or no relevance to this trial. This is said to be particularly important in the context of the evidence that Witness E had discussions with Witness F about the murder. 4. Finally, the document is said to be essential to the effective cross-examination of both Detective Maree and Witness E. 1. Mr Sparos' primary submission appears to be that any information in the document, notwithstanding that it is not directly relevant to the trial, is critical to the assessment of Witness E's credibility. Consideration The consequences of disclosure 1. Witness E is a police informer. As the authorities make clear, the Court will ordinarily give substantial weight to the need to protect confidential sources of information: Gardiner v R (2006) 162 A Crim R 233; [2006] NSWCCA 190 at [98]–[99]; R v Abdullah [1999] NSWCCA 188 at [20]–[24]. 2. The reasons for this are explained in Attorney General for New South Wales v Smith (1996) 86 A Crim R 308 at 311 where Gleeson CJ, Clarke and Sheller JJA said: "The rationale for this form of public interest immunity is that, if it were not extended, sources of information would dry up and the prevention and detection of crime would be hindered". 1. Similarly, in Attorney General (NSW) v Lipton at [38], Basten JA explained that: "In practice, informers fall into different categories, as do the threats attendant upon disclosure. Each case must depend, to a certain extent, upon its own facts, although the importance of maintaining trust in the ability of a police force to offer protection to informers is a consideration of general application." 1. Further, any statements made to the police which may have identified persons as witnesses or suspects in relation to matters other than those which are the subject of the current proceedings are "indisputably covered" by public interest immunity: Attorney General for New South Wales v Stuart (1994) 34 NSWLR 667 at 680–681. This necessarily flows from the public interest in the need to protect ongoing or future criminal investigations from being impeded or wholly frustrated: Evidence Act, s 130(4)(c); Attorney General for New South Wales v Stuart at 675; Beneficial Finance Corporation Ltd v Commissioner of Australian Federal Police (1991) 51 A Crim R 423 at 436–438. 2. Having regard to the contents of the confidential affidavits, I am satisfied that there are significant concerns for the safety of Witness E should this document be disclosed to Mr Sparos. The fact that the identity of Witness E is known to him does not alter this. In any event, I am also satisfied that there are or may be significant operational concerns that go beyond the protection of Witness E. The importance of the evidence 1. It is important to acknowledge that these are criminal proceedings in which the accused is seeking information that may assist his case either directly or by pointing to new lines of inquiry: Evidence Act s 130(5)(b). Accordingly, a significant consideration must be Mr Sparos' right to a fair trial. Access to information which may assist or support the defence case is an important facet of that right: see Obeid v Ipp at [30]. 2. A document may be important to the defence case for a number of reasons. For example, the document might resolve issues in dispute, contradict or explain the Crown case or affect the credibility of a Crown witness: see Public Transport Ticketing Corporation v Integrated Transit Solutions [2010] NSWSC 607 at [22](v). 3. However, with the benefit of having read IN264 in its unredacted form, I am satisfied that it does not assist Mr Sparos. Conversely, I do not consider that Mr Sparos will be at any forensic or procedural disadvantage if he is not given access to it. The undisclosed portion of the document contains information that is entirely irrelevant to the present proceedings. It does not refer to discussions between Witness E and Mr Sparos about Mr Maika. Further, aside from the paragraph already disclosed, there are no references to either Mr Maika or Witness F. 4. I accept that the content of the document may have some, albeit limited, relevance to the assessment of Witness E's credibility. The balancing exercise 1. In the present circumstances, the balance is overwhelmingly in favour of upholding the Commissioner's public interest immunity claim. The public interest in preserving the confidentiality of both Witness E and the information provided to the police outweighs the importance of disclosure to Mr Sparos. 2. Considering the limited utility of the evidence, I am also satisfied that the Mr Sparos' right to a fair trial will not be impeded by the non-disclosure of IN264. 3. Finally, Mr Carroll suggests that if the Commissioner is concerned about the safety of the individuals identified by Witness E, those names could be redacted. In my view, such an approach would not be appropriate as the sensitive nature of the information extends beyond the names of the people who are mentioned. Nor do I think it would be appropriate to provide the document confidentially to the legal representatives of the parties. As noted by Davies J in Obeid v Ipp at [28]–[29]: "[28] Different considerations seem to me to apply where the physical safety of a person is concerned. With the best will in the world, the more people who know of a matter the more chance there is for the disclosure of some aspect of the information which can then be linked to other known information that might ultimately result in the safety of the person sought to be protected being compromised. [29] In Hilton v Wells (1985) 15 A Crim R 418; 5 FCR 296 Wilcox J said at 429: Without reflecting in any way upon the integrity of any counsel or solicitor, difficulties are likely to arise where counsel appearing in, and advising their clients in respect of, protracted and complex proceedings acquire information which they are not free to use or to pass on to their clients. During the heat of battle an unwitting disclosure may occur. Frank and full advice becomes impossible. I am aware of cases in which, for reasons such as these, experienced counsel have declined to receive information which they are not free to share with their clients. It seems to me merely common sense to conclude that the fewer people who have access to confidential information the less is the risk of unauthorized disclosure." 1. Accordingly, I am not satisfied that there are any appropriate means of addressing these concerns should the document be disclosed to the parties or to their legal advisers: Evidence Act, s 130(5)(d). Conclusion 1. In these circumstances, I make the following orders: 1. Uphold the Commissioner's claim for public interest immunity in relation to the undisclosed portion of the document known as IN264. 2. Direct under s 130(1) that IN264 not be adduced in this trial. 3. Set aside paragraph 4 of Mr Sparos' subpoena to the extent that the Commissioner is not required to produce IN264. ********** 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: 17 August 2018