R v Williams

1. [1]

   On or about 19 January 2024, a subpoena to produce documents consisting of 11 paragraphs was served on the Commissioner of the New South Wales Police Force. That subpoena was issued at the request of the solicitors for the Accused in this trial.

2. [2]

   On 29 January 2024, the Commissioner of Police was granted leave to file in Court, a Notice of Motion seeking to set aside the subpoena in part, or else to be excused from producing any documents that are subject to a claim for public interest immunity.

3. [3]

   In support of that Motion, the Commissioner has relied upon an affidavit of Scott Cook, an Assistant Commissioner of Police, which has been provided to the Crown and to the Accused, together with the contents of Exhibit SC1 to that affidavit.

4. [4]

   For the purpose of the hearing of this Motion, the Commissioner applies to the Court for an order that the Court be closed so that a confidential affidavit, exhibit and written submissions can be placed before the Court and for confidential oral submissions to be made about the issues raised in those documents. The Commissioner seeks that the closed court order requires all parties and individuals except the Court and the Court staff to be excluded from the courtroom. This included the Accused.

5. [5]

   The Commissioner points to the fact that such procedure has been undertaken in previous proceedings both at first instance and on appeal. The Commissioner draws attention to the decision of the New South Wales Court of Criminal Appeal in R v Francis [2004] NSWCCA 85; 145 A Crim R 233, in particular at [21], where it was noted after some argument in open court that the Court of Criminal Appeal was closed in order to allow a free discussion of the various confidential matters raised.

6. [6]

   The Court of Criminal Appeal noted that the applicant, who was the accused in that case, and his legal representatives, together with the Crown Prosecutor in the trial, their junior and instructing solicitor were excluded from the Court whilst that procedure occurred. The Court also noted that that part of the procedure was recorded in a separate transcript. The appeal against the decision of the trial Judge to follow such a procedure was dismissed.

7. [7]

   In Franklin v Commissioner of Police and Anor [2018] NSWSC 310, the plaintiff in those proceedings faced criminal charges in the Local Court. The plaintiff through his lawyers issued various subpoenas. The production of documents pursuant to those subpoenas was objected to by the Commissioner of Police on grounds including the existence of public interest immunity.

8. [8]

   The Magistrate’s decision gave rise to an appeal purportedly pursuant to the Crimes (Appeal and Review) Act 2001 to the Supreme Court. One of the grounds of that appeal complained about the procedure used by the Magistrate in hearing the public interest immunity claim. The Magistrate had adopted the approach used by the Court of Criminal Appeal in the decision of Francis, to which I have just referred. The Magistrate had closed the Court and all individuals left the courtroom, with the exception of the Magistrate, the Court staff and the Commissioner’s representatives, so as to allow a more detailed submission or discussion of the issues raised by the material relied upon by the Commissioner .

9. [9]

   At [72] Johnson J said:

10. [10]

    Section 131A of the Evidence Act 1995 has the effect of applying s 130 of the Evidence Act to claims for public interest immunity being made with respect to production of documents by way of subpoena which is preliminary to the conduct of the trial. Johnson J said at [73]:

11. [11]

    I am satisfied that the provisions of s 130 of the Evidence Act apply in the circumstances in which the Court presently finds itself. I am entitled to inform myself with respect to the question of whether there is any public interest immunity available to the Commissioner for Police with respect to the existence of and potential production of any documents in answer to the subpoena and whether they do or do not exist in any way that I see fit.

12. [12]

    In the exercise of the discretion to determine whether or not I should hear the Motion further in closed Court, including the reception of confidential material, and balancing the interests of open justice against the principles of public interest immunity, I am satisfied that I should close the Court to permit those further steps being taken in these proceedings. Before coming to that state of satisfaction, I should note that I read a confidential affidavit, which it is inappropriate to be further identified.

Order

1. [13]

   I make the following order:

   1. (1)

      Order the Court to be closed and that everybody, including the Accused, other than the legal representative of the Commissioner for Police is to leave the Court and the hearing of the Court.