Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Monteiro (aka Lowe) (No 2) [2020] NSWSC 349 Hearing dates: 23 March 2020 Date of orders: 23 March 2020 Decision date: 23 March 2020 Jurisdiction: Common Law Before: Cavanagh J Decision: The Commissioner's claim on the basis of public interest immunity is established. Catchwords: EVIDENCE — privileges — public interest immunity — applicant produced documents pursuant to order under Crimes (High Risk Offenders) Act 2006 (NSW) s 25 — objection to disclosure of redacted material in documents — protection of police sources and informants — balancing of public interests Legislation Cited: Crimes (High Risk Offenders) Act 2006 (NSW), ss 9, 10A, 10C, 11 Evidence Act 1995 (NSW), s 130 Cases Cited: Alister v R (1984) 154 CLR 404 Attorney General (NSW) v Lipton [2012] NSWCCA 156; 224 A Crim R 177 Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667 Cane v Glass (No 2) (1985) 3 NSWLR 230 Marks v Beyfus (1890) 25 QBD 494 Sankey v Whitlam (1978) 142 CLR 1 State of New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60 Category: Procedural and other rulings Parties: Commissioner of Police, NSW Police Force (Applicant) State of New South Wales (Plaintiff) Simon Monteiro (aka Simon Lowe) (Defendant) Representation: Counsel: T Glover (Applicant) Solicitors: Crown Solicitor's Office (Applicant and Plaintiff) Defendant (self-represented) File Number(s): 2020/70194 Publication restriction: Pursuant to interim non-publication and suppression orders made by the Court on 23 March 2020, under s 10 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), there is to be no publication of material that identifies or is likely to lead to the identification of Ms L. REVISED EX TEMPORE Judgment 1. This matter comes before the Court on 23 March 2020, being the last day on which parties may appear in person before the Court due to the COVID-19 crisis. The Commissioner of Police, New South Wales Police Force ("Commissioner"), brings an application to withhold disclosure of certain documents already produced in answer to a subpoena to produce on the grounds of public interest immunity. 2. On this application, Mr Glover of counsel appears for the Commissioner and the defendant, Simon Monteiro (aka Simon Lowe), appears in person. Mr Monteiro formerly had legal representatives but those representatives sought and were granted leave to withdraw last week. Mr Monteiro has made submissions and relies on certain documents in opposition to the orders sought by the Commissioner. Mr Monteiro has demonstrated that he understands the nature of the application being made and has made submissions dealing with the issues. 3. The current application is being made before the hearing of the substantive matter, being an application by the State of New South Wales as plaintiff ("the State") for orders under the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act"). The matter is listed to be heard before the Court tomorrow, 24 March 2020, for the purposes of the State seeking both interlocutory orders appointing psychiatrists and/or psychologists to examine the defendant, and interim orders under ss 10A, 10C(1) and 11 of the Act. Final relief is not sought at this time. 4. The background to the substantive application by the State is that on 9 April 2009 the defendant was sentenced to a total effective sentence of 12 years and three months' imprisonment with a non-parole period of seven years and nine months for the offence of aggravated sexual assault. The defendant was released on parole and his period of supervision on parole expires on 7 April 2020. 5. The matter thus comes before the Court on an urgent basis, having regard to the impending expiry of the defendant's period of supervision on parole. Pursuant to a subpoena to produce, the Commissioner has produced to the Court documents generated by the New South Wales Police known as an ICOPS summary of police records (ICOPS Summary). The defendant has been granted access to the documents produced and has had access to those documents. When producing the ICOPS Summary, the Commissioner redacted parts of the document and produced the document in the redacted form. 6. The defendant seeks access to those parts of the document which have been redacted. The Commissioner says that those redacted parts should not be disclosed to the defendant on the grounds of public interest immunity. In support of its application, the Commissioner relies on two affidavits of Michael Fitzgerald, sworn 20 March 2020. One affidavit was described as an open affidavit and the other is a closed affidavit. Only the open affidavit has been provided to the defendant. Exhibited to the closed affidavit of Mr Fitzgerald are the un-redacted versions of the documents produced. 7. The defendant relies on two different types of documents in support of his resistance to the Commissioner's position: firstly, being a number of pages of text messages passing between him and a woman in April 2019, altogether forming exhibit one, which he submits establishes that the allegations made against him in respect of that woman could not be true; and secondly, documents comprising an apprehended personal violence order made against him, forming exhibit two. 8. Consistent with accepted practice, I have read both the open and closed affidavits and the material attached thereto. I have explained to Mr Monterio that, on the current application, he is not entitled to see the closed affidavit, but, of course, if the Commissioner is unsuccessful in his application, then he would be granted access to the redacted material. Public interest immunity 1. The protection of the identity of a Police source or informer has long been recognised as a category of cases for which protection against disclosure is afforded by virtue of public interest immunity: see Marks v Beyfus (1890) 25 QBD 494; Cane v Glass (No 2) (1985) 3 NSWLR 230 at 242. The immunity covers any material which might tend to disclose or reveal the identity of the Police source. The rationale behind the immunity is that, if the identities of Police sources or informers were liable to be disclosed, sources of information might dry up and the Police would be hindered in their duty of preventing and detecting crime. As identified by Hunt CJ at CL in Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667 at 675, the public interest in protecting the identity of Police informers appears to be part of a broader public interest, that is, the maintenance of social peace and order. 2. When a claim for public interest immunity is made, the Court is required to consider: 1. whether harm would be done by the production of documents; and 2. whether the administration of justice would be frustrated or impaired if the documents are withheld, and to decide which of those aspects predominates in the particular case. The Commissioner's submissions 1. The Commissioner provided written submissions and made oral submissions by AVL. The Commissioner identified five significant matters as part of its submissions as follows: 1. firstly, the Commissioner emphasised that, having regard to State of New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60 at [24], the common law applied rather than the Evidence Act 1995 (NSW), although there would appear to be little difference between the common law and s 130 of the Evidence Act; 2. public interest immunity is a recognised category, which has been consistently applied by the Court for a long period; 3. in considering the balancing exercise required, the Court should accept that the Commissioner's claim is a well-recognised category of public interest, that is, public interest in preserving Police sources; 4. in undertaking the balancing exercise the defendant is required to establish some basis for the disclosure. The defendant had not, at the time of the Commissioner's submissions, articulated any purpose for which the information was required; and 5. the Court should find that the public interest in non-disclosure is greater or overrides the public interest in disclosure. The Defendant's submissions 1. The defendant made a number of submissions, some of which might tend to be overlapping or be along the same theme. Firstly, the defendant submitted that the approach of the State, which is not the applicant on the current application, is that if you throw enough mud, some of it is likely to stick and that what the State is really seeking to do is to throw mud at the defendant and hope that the Court will have regard to material which has no probative value or relevance and which should not be before the Court. Secondly, the defendant submitted that he was not in possession of all the redacted material and this meant that he was not able to adequately and fairly represent himself, such that it could not be in the public interest that he, as a defendant in the proceedings, be unable to fairly represent himself. 2. Thirdly, he referred to the text messages and the material from the AVO as tending to establish that the allegations made against him in respect of his conduct towards the person in April 2019 are likely to be false. I understand that the point of that submission is to suggest to the Court that this is just another example of mud being thrown at him which has no factual basis. Having regard to those text messages, I should accept that there is no factual basis for many of the allegations raised against him. 3. Next, he submits that he wishes to make relevant submissions to establish that the events could not have occurred and that he is unable to do so without access to the redacted information. He says that the redacted information may contain material which might assist him in the defence of the substantive application. He accepts that he does not know that it would assist him but he says that it may and he should be entitled to review the information to determine whether it would assist him. Consideration 1. It is important to emphasise that the Court is not dealing with criminal proceedings. The application for orders under the Act is in the nature of a civil application. 2. The Court must embark upon a three stage process. It must: 1. determine whether there is a public interest in the non-disclosure of the information in question; 2. determine whether there is a public interest in the disclosure of the information in question; and 3. balance or weigh the public interest in disclosure against the public interest in non-disclosure in order to decide whether or not the information should be disclosed. 1. As part of the balancing exercise, I am required to consider the nature of any injury which might be suffered by disclosure and the evidentiary value and importance of the documents in the particular litigation: see Alister v R (1984) 154 CLR 404 at 412, 434; Sankey v Whitlam (1978) 142 CLR 1. 2. In Attorney General (NSW) v Lipton [2012] NSWCCA 156; 224 A Crim R 177 at [38], Basten JA stated: "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. In my view, there is a public interest in the non-disclosure of the information in question. That public interest is in the protection of Police sources and informants. It is critical to the administration of justice and proper and fair policing that persons who come forward and provide information to Police for the purposes of criminal investigations or are identified by Police as sources of information and who provide such information are protected. 2. In the circumstances, I am satisfied that there is a public interest in the non-disclosure of the information in question. 3. The next issue is whether there is a public interest in the disclosure of the information in question. There is always a public interest in the disclosure of information if it is necessary for there to be a fair trial, for example, so that persons accused of criminal offences are given a fair opportunity to defend themselves. The defendant says that he has not been given a fair opportunity to defend himself because he is not being provided with all the information. However, again, whilst accepting that the defendant has not had access to the confidential information, that submission could only have merit if I am satisfied that the provision of such information would, in some way, assist the defendant or be relevant to the orders that are sought against him, and by "relevant", I mean relevant in enabling him to put before the Court evidence that might assist in the proper determination of the State's summons. 4. It does not seem to me that disclosure of the information would assist the defendant at all in answering the State's claim for orders against him. Indeed, I have difficulty even understanding the relevance of the information which has been redacted. 5. Of course, in determining an application under the Act, I must have regard to numerous factors as set out in s 9 of the Act and that would include the circumstances of the index offence as well as any other criminal history and other matters relevant to that criminal history. However, the identity of sources relating to that criminal history would not be of any probative value in determining the substantive issue between the State and the defendant. 6. Further, the defendant is required to identify the basis on which the information is required. It is not sufficient merely for a defendant to submit that it is possible that there might be something in the documents which might lead to a train of enquiry or might possibly be of some relevance to the substantive proceedings. At its highest, the defendant merely submits that there might be a possibility that there might be something in there which might be of assistance. 7. Whilst I acknowledge the force of the defendant's submissions that he is entitled to a fair hearing and that there is always a risk that the withholding of information might jeopardise a fair hearing, I am satisfied that the redacted documents would not and do not jeopardise his right to a fair hearing. 8. Again, it is important to emphasise that this is an application being pursued by the Commissioner of Police. The Commissioner has produced documents which are redacted. Neither the State nor the defendant will be able to access and use the information contained in the redacted documents. 9. Turning now to the question of balancing the public interest in disclosure against the public interest in non-disclosure, in circumstances in which there appears to be no or very limited public interest in disclosure of the documents, I am satisfied that the public interest in non-disclosure far outweighs the public interest in disclosure. 10. I have regard to the defendant's submission that the State is throwing mud and attempting to put before the Court irrelevant documents for the purposes of infecting the Court's mind but the Court must be taken to be capable of putting out of its mind irrelevant or extraneous matters. It does so regularly in circumstances in which it is required to read documents to which there is objection. Further, I hasten to add that although I have read the redacted versions, I do not consider that the material is of a type which would have any probative value in any event. That is, I do not consider that the material which tends to reveal the identity of the Police sources is likely to impact upon the issue between the State and the defendant as to whether the interlocutory, preliminary and final orders should be made. 11. In the circumstances, the Commissioner's claim on the basis of public interest immunity is established. ********** 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: 03 April 2020