JB v R

HOEBEN CJ at CL and ADAMS J:

The basis for the referral was the discovery of evidentiary material subsequent to the exhaustion of the avenues of appeal. That material concerned the evidence of an important prosecution witness in the applicant’s trial. The material raised questions of non-disclosure by police, non-compliance with the prosecution’s duty of disclosure and a possible conflict of interest on the part of the applicant’s solicitor at trial and on appeal.

Given the limited nature of this judgment, it is not necessary to review in any detail that material. It is sufficient to say that an important part of the Crown case was that the applicant had made admissions at a police station following his arrest. The admissions were said to have been made to a support person, 107A, who was present because the applicant was a vulnerable person, being aged 15 at the time. The support person was a registered police informant.

When the matter came before this Court, it was common ground between the applicant and the Crown that the conviction had to be quashed and that the only issue before the Court was whether the Court should order a retrial or enter a verdict of acquittal.

Despite attempts by the Court to narrow the issues, the applicant maintained that he was entitled to review in detail every aspect of the prosecution case with a view to establishing that the investigation of the murder and the conduct of the prosecution against him were so tainted that the Court would take those matters into account when exercising its discretion as to whether or not to order an acquittal. In essence, the applicant’s position is that at all times the police officers concerned with the investigation knew that 107A was an informant and that he was deliberately placed with the applicant as a support person in order to obtain admissions from the applicant.

In accordance with that approach the applicant had the court issue an order to produce directed to the Commissioner of Police requiring production, amongst other things, of the following:

In argument before this Court that order was modified so that the Commissioner was required, subject to any claim for public interest immunity, to produce the Police Source System records relating to 107A to which Inspector O had access up to 1 September 2009. Inspector O was 107A’s handler at the time when the admissions were said to have been made, i.e. 22 – 23 April 2008.

Counsel appearing for the Commissioner of Police produced to the Court documents answering that description but objected to their production to the applicant or the Crown on the basis of public interest immunity. The Commissioner advised the Court that he had no objection to the Court looking at the records so produced.

In seeking the order against the Commissioner of Police for the production of the Police Source System records, the applicant relied upon two documents. The first was an Affidavit of Assistance prepared by Chief Inspector O, dated 29 September 2008. That document was prepared so that it could be used on behalf of 107A in sentence proceedings in the Local Court for two offences of making a false statement to obtain money. The amount involved in the two offences was $42,000. 107A was sentenced in the Local Court on 30 September 2008 and received a suspended sentence, a Community Service Order and was ordered to pay compensation of $68,700.

The Affidavit of Assistance stated that 107A had been a police informant and had provided assistance to the police between 26 March 2008 and 1 August 2008. Various instances of such assistance were set out in the affidavit. Of relevance to these proceedings was the following:

The applicant’s legal advisors obtained this document when they asked for and received a copy of the Local Court file relating to these offences.

The second document upon which the applicant relied was an affidavit of M, who in 2008 was a Detective Sergeant of Police and the officer in charge of the investigation into the murder of Edward Spowart. M resigned from the police service in 2010. He swore his affidavit on 18 March 2015. The paragraphs relied upon by the applicant were paragraphs 6 and 7 which contained the following:

That affidavit had been served on the applicant’s legal advisers by the Crown for possible use in these proceedings. At the time of this application, the affidavit had not been read by the Crown.

Other evidence that may be relied on by the Crown, should there be a new trial, includes admissions said to have been made by the Applicant to an “accomplice”, Mr Ringo Madut and other evidence of the circumstances of the affray during which the deceased was stabbed to death. In considering the strength of the remaining Crown case, the credibility of Madut naturally arises. One of the witnesses (“C”) had given evidence in the trial that, when the group of which Madut was one fled from the scene after the affray, Madut threw a knife over a fence. Madut’s evidence, given later, was to the effect that he had been told the day before he gave evidence about C’s evidence. As was submitted by the applicant, this (if true) forewarned Madut of evidence that supported the applicant’s case that he was innocent of stabbing the deceased and that it was in fact Madut who had a knife that night.

Not surprisingly, the applicant seeks a copy of the original conference notes between the Crown and Madut. The fact that Madut had a knife, if true, or perhaps even if he was aware that it is alleged that he did have a knife, would be relevant in assessing the credibility of his evidence implicating the applicant. The applicant also seeks production of all communications or correspondence relating to the witness 107A.

The relevant emails are between Mr T Thorpe, the Prosecutor and Ms Davis, his Instructing Officer. By far the greater proportion have been disclosed without redaction. Some have been edited to remove material covered by legal professional privilege. Unredacted copies were produced to the Court to enable the issue of legal professional privilege to be considered. The conference notes, as such, are not subject to any claim for privilege.

No submissions were made in reliance upon s 130 of the Evidence Act 1995 (NSW). The submissions were based on common law principles. There was no issue that the Commissioner of Police was the party required to produce the relevant documents and also the party objecting to their production.

The Commissioner restated the importance of the protection against disclosure extended to a police informant as a matter of public policy. The Court was referred to the statements of principle by McHugh JA in Cain v Glass (No 2) (1985) 3 NSWLR 230 at 233 – 234, 242, 246 – 247. The Commissioner, however, also acknowledged the exception where disclosure of the identity of an informant will be ordered by a court when required to establish the innocence of an accused person. The Commissioner accepted that such an exception had been made out in this case where the identity of 107A and the fact that he had been an informant at the relevant time, was essential to establishing the innocence of the applicant.

Implicit in that concession would seem to be an acknowledgment that that part of the Police Source System records which contained the entry or entries relating to the murder of Edward Spowart and any assistance provided by 107A should be produced to the applicant.

The Commissioner objected to producing those parts of the Police Source System records which related to other matters in which 107A had provided assistance to the police. The Commissioner submitted that just because 107A had been revealed as an informant in respect of the Spowart matter, did not entitle the applicant to know that he had helped in other matters, the details of those other matters and the nature of the help which was provided. In that regard the Commissioner relied upon the Attorney General for NSW v Stuart (1994) 34 NSWLR 667; a decision of the Court of Criminal Appeal comprising Hunt CJ at CL; Smart and Studdert JJ.

The Commissioner submitted that such disclosure would increase the risk to 107A and would increase the deterrent effect that the informant rule was designed to avoid, i.e. one of the primary reasons for protecting informants was to ensure the flow of information and intelligence to law enforcement authorities in the future. The Commissioner submitted that it was obvious that if an informant was exposed as having given evidence in other matters, that would have a tendency to deter other people from helping the police in the future.

The Commissioner submitted that even before any weighing of the need for confidentiality against the asserted need for the applicant to have access to this material for the purposes of administering justice, the applicant had to establish a legitimate forensic purpose for the production of that material. In that regard, the Commissioner relied upon what Hunt CJ at CL said in Attorney General for NSW v Stuart at 681E:

The Commissioner submitted that the only legitimate forensic purpose identified by the applicant was the possibility that production of the Police Source System records relating to 107A’s assistance in other matters would reveal that the investigating police officers (M and F) had full knowledge that 107A was an informant before he was taken to Cobham and placed with JB and that in effect they used him as an agent provocateur.

The Commissioner submitted that there was nothing before the Court to show that it was “on the cards” that material of that kind was likely to be found within the Police Source System records relating to 107A. It was nothing more than speculation to make such an assertion. The Commissioner submitted that even if it were “on the cards” that such material might be found in the Police Source System records, it had not been established how such material would help show that an acquittal, as distinct from a retrial, should be ordered. This was because misconduct on the part of the investigating police officers of the kind alleged, even if established, would not make the applicant’s position any stronger on this issue.

The Commissioner submitted that even if the Court was satisfied that the applicant had established a legitimate forensic purpose for having access to those records, it would not find that the applicant could satisfy the required balancing test. The Commissioner submitted that when the utility of access to the Police Source System records relating to other instances when 107A had provided information to the police was weighed against the very important principle that informants were to be protected, so as to not only protect the informants themselves but to ensure a continuous flow of information, the balance would favour the non production of the documents.

The Commissioner submitted that should the Court order that the records be produced, there should be a suppression order so that there was no reference to 107A’s role as an informant in respect of other matters outside the confines of the court. The Commissioner accepted that in such a circumstance, the precise terms of the suppression order could be agreed between the parties.

The applicant submitted that it was clear from the Affidavit of Assistance and the Local Court documents relating to 107A, that he had received a significant benefit from being a police informant. Because one of the instances where 107A had provided assistance to the police involved obtaining admissions which led to the conviction of the applicant, the applicant was entitled to have access to the original source material, i.e. the records, so that he could find out the precise relationship between 107A and the police and in particular, the extent of the knowledge which Detectives M and F had concerning 107A’s activities at that time.

The applicant submitted that it was clear from the affidavit of M that he had seen the records and that either he or Inspector O had made the relevant entry in those records. The applicant submitted that it was important for him to know what other material was in those records at the time that M had access to them. For example, did the records show that 107A was facing charges of his own and that he expected an affidavit or letter of assistance from the police in respect of those charges? The applicant submitted that the Police Source System records comprised documents which were fundamental to an assessment of the state of knowledge of M at the time of the investigation of the murder and when proceedings were commenced against him.

The applicant submitted that it was “on the cards” that access to the records would show that the meeting between 107A and M leading to the attendance of 107A at Cobham as a support person was not merely fortuitous but was part of a deliberate police plan to interrogate and entrap him. The applicant submitted that such evidence was relevant because it would show the extent to which the investigation and Crown case against him were tainted. The applicant submitted that such matters were relevant to how the Court might exercise its discretion whether to order a retrial or enter a verdict of acquittal. The applicant submitted that if M were shown to be untruthful in the affidavit which had been filed by the Crown in these proceedings, that would also be a relevant discretionary consideration for the Court.

The applicant submitted that it was necessary for him to see the records to find out whether they disclosed that 107A was facing charges of his own and that he had an expectation that by acting as an informant for the police, he would receive a benefit or discount as a result thereof. The applicant submitted that the extent of the knowledge of M and Detective F of 107A and his activities, was relevant to the Court assessing the extent of the miscarriage of justice which resulted in his conviction.

In summary, the applicant submitted that the legitimate forensic purpose behind his request for access to the records was to determine the nature and extent to which the police investigation was tainted. He submitted that on the one hand, the factual situation might be as deposed by M but on the other, the extent of the police misconduct might have been much more serious involving not only an unfair “setting up” of himself, but a deliberate withholding of relevant evidence. He submitted that the nature and extent of the taint on the investigation was a matter relevant to the exercise of the Court’s discretion as to whether or not to enter a verdict of acquittal or order a retrial. In support of that proposition, the applicant relied upon the observations of Garling J in Gilham v R [2012] NSWCCA 131; 224 A Crim R 22 at [698] where his Honour said:

The Crown supported the submissions of the applicant and sought access to the Police Source System records relating to 107A. The Crown submitted that it would not be calling 107A on any retrial of the applicant. The Crown accepted that as soon as the prosecutor knew that 107A was a registered police informant, further inquiries should have been made. The Crown accepted that once Detective M became aware of that fact, he should have made further and fuller inquiries concerning 107A.

The Crown submitted that the only relevance of the records was the extent to which they demonstrated police or prosecutorial misconduct. The Crown accepted that an important issue was whether Detectives M and F knew at the time that they used 107A, on 22 April 2008, that he was a registered police informant, that he was being used as their agent and that his acting as a support person was a ruse. The Crown submitted that contrary to what the applicant asserted, it did not accept that those police officers had such knowledge at that time. For that reason, the Crown was happy for the applicant to have all relevant information from the Police Source System records because it would prove that those officers did not know that at the time 107A offered to assist as a support person, he was a registered informant. The Crown submitted that the issue that the records went to was the extent of the misconduct.

So far as the documents subject to the claim of legal professional privilege are concerned, it is not disputed that (given the particular role of the Director of Public Prosecutions and those acting under his direction) the test whether the privilege applies is, essentially, determined by relevance. Accordingly, if the redacted material is relevant to the issues in the appeal, it is not covered by legal professional privilege since that privilege, in respect to the Director, must give way to the duty of disclosing material which is reasonably capable of assisting the defence.

A preliminary difficulty in this matter is that the importance of the rationale behind the informant rule has been substantially weakened because at least some of the material in the Police Source System records concerning assistance provided by 107A on other occasions and in relation to other persons in addition to that concerning the murder of Edward Spowart, is set out in the Affidavit of Assistance to which the applicant has already had access. That being so, and given the concession by the Commissioner of Police concerning the entry in the records relating to 107A’s assistance with respect to the murder of Edward Spowart, we are of the opinion that that part of the Police Source System records relating to that entry should be produced. In that record, 107A’s identity is known and the nature of his assistance is also known.

The entries relating to assistance provided to the police by 107A on other occasions is in a different category. We have difficulty in identifying the legitimate forensic purpose for which the records should be produced. As between the Crown and the applicant, a miscarriage of justice in the applicant’s conviction has been admitted. Not only that, the Crown has conceded that the police investigation miscarried in that proper and further inquiries were not made by the police when the investigating detectives learned that 107A was a registered police informant. The Crown has also acknowledged a significant failure by Crown law officers in that when the prosecution learned that its key witness was a registered police informant, it did not carry out further inquiries and did not provide that information to the defence.

In those circumstances, it is difficult to see what further benefit could be gained by the applicant if in addition to those failures, it were to be established that the investigating police officers knew that 107A was a police informant before arranging for him to act as a support person for the applicant. It makes their conduct more serious but only as a matter of degree. The essential failure to properly investigate has already been established.

If as the applicant submitted, the production of the records goes to discretionary considerations relating to whether or not a verdict of acquittal should be entered, the importance of whether the conduct of the investigating police officers should be regarded as a very serious dereliction of their duty as distinct from a serious dereliction is of marginal importance at best. In the context of this case, it is the miscarriage of justice arising from the officers of the Crown which is of significance, rather than the extent of the dereliction of duty by the investigating police officers. There is nothing in the observations of Garling J in Gilham to contrary effect.

There is another difficulty with the applicant’s submissions. There is nothing other than assertion and speculation to support the proposition that “it is on the cards” that if the Police Source System records in respect of 107A relating to other matters were produced, they would reveal greater knowledge on the part of the investigating police officers than has been thus far disclosed, or that they would reveal that inducements in the nature of assistance in meeting the charges brought against him had been offered to 107A.

It follows that we are not satisfied that the applicant has established a legitimate forensic purpose for requiring the production of the Police Source System records with respect to 107A in matters other than the murder of Edward Spowart.

That is sufficient to deal with the applicant’s application. In the course of the hearing, however, the Commissioner invited the Court to inspect for itself the whole of the Police Source System records relating to 107A. Having done so, we are able to say that apart from the entry relating to the murder of Edward Spowart, there is no material in the records which would in any possible circumstances provide material assistance to the applicant with respect to the issue which he has identified, i.e. the exercise of the Court’s discretion as to whether or not to enter a verdict of acquittal.

In an application of this kind for the production of documents, the Court would normally not take the step of inspecting the documents except in unusual circumstances such as occurred in the seminal case of Alister v The Queen [1984] HCA 85; 154 CLR 404. Given the unfortunate history of this case, and the fact that a miscarriage of justice occurred because appropriate inquiries were not made by relevant agencies, it is important that the applicant understand that documents, which might be relevant to his appeal, were not being kept from his legal advisers.

We set out below the parts for which privilege is claimed but which should be disclosed. In some instances we have set out part of the text (already provided) to provide context. It should be said, in fairness, that some of the material which is the subject of the privilege claim is an opinion about how the witness will go in evidence. Such an opinion is not a relevant fact and the claim for privilege is upheld in respect of it. The small amount of material objected to which is capable of assisting the defence or giving rise to a line of enquiry and, accordingly, is not subject to privilege is set out in italics –

The Court orders:

McCALLUM J: I have read in draft the joint judgment of Hoeben CJ at CL and Adams J. I agree with the proposed ruling as to privilege, for the reasons their Honours have stated. With great respect to their Honours, I do not agree with their conclusion as to the Police Source System records.

In my respectful opinion, the applicant has established a legitimate forensic purpose for requiring production of the documents sought, that is, all of the records with respect to 107A, not only those relating to the assistance he provided in respect of the murder of Edward Spowart. The applicant’s submissions have persuaded me that the prospective forensic assistance of such documents is beyond mere assertion or speculation. That is not to give in to scepticism as to the contents of M’s affidavit but merely to acknowledge that the obvious tension between 107A’s professed role as a support person for the applicant and the assistance he offered police is troubling and warrants comprehensive investigation.

Contrary to the conclusion reached by the Chief Judge and Adams J, I am persuaded that the outcome of that investigation could (depending on what transpires) be of more than marginal importance in the determination whether to exercise the power contained in s 8(1) of the Criminal Appeal Act 1912 (NSW) to order a new trial. That section confers a broad discretion which is to be exercised according to the interests of justice. A primary consideration is whether the remaining evidence given at the original trial was “sufficiently cogent to justify a conviction”: DPP (Nauru) v Fowler [1984] HCA 48; 154 CLR 627 at 630. The applicant will argue that it was not, and that an acquittal must follow (written submissions at para 185). But if that issue is determined against the applicant, the Court must also take into account “any circumstance that might render it unjust to the accused to make him stand trial again”: Fowler at 630.

Considerations of any injustice to an accused of ordering a new trial are likely to be informed by the reason for quashing the conviction. Perhaps unsurprisingly, the precise facts of this case do not appear to have arisen previously for consideration in this context. Where the occasion for quashing a conviction is that the jury was misdirected by the trial judge, and there would be no change in the Crown case on a re-trial, the assessment is less complex, but even in that instance there is room for different views: see for example Peacock v R [1911] HCA 66; 13 CLR 619 at 641-644 per Griffiths CJ; cf at 659 per Barton J and 675 per O’Connor J.

It is well established that a re-trial should not be ordered to allow the presentation of a new case which was not made at the first trial: R v Wilkes [1948] HCA 22; 77 CLR 511 at 518 per Dixon J, Rich and McTiernan JJ agreeing; Latham CJ dissenting. That is a species of unfairness. However, what constitutes a “new case” in that context is also the subject of different views: see for example R v Taufahema [2007] HCA 11; 228 CLR 232 at [36] to [38] per Gleeson CJ and Callinan J; cf at [60] to [68] per Gummow, Hayne, Heydon and Crennan JJ.

In the present case, the conviction has been quashed due to a failure of the Crown to disclose material relating to the role of 107A and his relationship with police and a failure of police to disclose the fact that he had been given an affidavit of assistance prior to the trial. The Crown has indicated that it would not call 107A at any new trial but that is not necessarily the ambit of any unfairness flowing from those failures. In my view, the extent to which the path of the investigation which resulted in the charging of the applicant may have been tainted or influenced by the assistance volunteered by 107A and the extent of police awareness of his status as a registered informer could be relevant to the fairness of putting the applicant on trial a second time. On my reading of the authorities, that would be a proper consideration in the exercise of the Court’s discretionary power under s 8(1).

As noted in the joint judgment, the Crown has made a concession that the police investigation miscarried in that proper and further inquiries were not made when it was learned that 107A was a registered informant. However, in my respectful opinion, the interests of justice and, in particular, the consideration of any injustice to the accused of ordering a new trial may be informed by considerations beyond that bare concession. The fairness of ordering a new trial is not simply a question of removing 107A from the Crown’s witness list and assessing the cogency of what remains. In my view, the applicant is entitled to investigate for himself what would or might have been revealed had proper inquiry been made during the investigation or indeed at any point before the first trial.

Having regard to the importance of that issue, I consider that the interests of justice weigh in favour of ordering the production of all of the documents sought (with an appropriate suppression order). In light of that conclusion, I have not inspected the documents myself. I consider it preferable to leave the task of assessing their significance to the applicant’s legal advisors.

In lieu of the order proposed in the joint judgment, the order I would have made is that the Commissioner of Police produce all of the Police Source System records relating to 107A to which Inspector O had access up to 1 September 2009.