Attorney General for New South Wales v XX

1. [1]

   HIS HONOUR:

Nature of proceedings

1. [2]

   The respondent has applied for Orders to Produce in the form of Draft Orders to Produce filed 19 June 2017 to be determined by this Court. The Draft Orders to Produce which are sought are in the form annexed to these reasons (hereafter referred to as the Draft Orders; Annexure 1).

2. [3]

   For the purpose of this application, the relevant provisions of the CARA are:

3. [4]

   It was agreed by the parties that they were not in a position to make submissions concerning the first three paragraphs of the Draft Orders. Accordingly the issue of whether the documents therein referred to should be produced was deferred to a later date. Accordingly the application only proceeded in relation to pars (4) — (7) of the Draft Orders.

4. [5]

   As can be seen from the form of the Draft Orders they refer to three classes of documents. The first class comprises documents recording the decision not to make a retrial application. There appears to be no difficulty in relation to those documents since they are already in the public domain and they were not the subject of any submissions before me.

5. [6]

   The second class refers to “reasons for decision not to make a retrial application”. Initially no documents answering that description were produced. Shortly before the hearing however three letters were produced in answer to that description. They comprised two letters to a firm of solicitors and one letter to the NSW Legislative Council Standing Committee on Law and Justice (the Standing Committee) concerning the Government’s position in relation to the Standing Committee’s Inquiry into the Family Response to the Murders in Bowraville (the Inquiry). The Attorney General objected to the production of those three letters.

6. [7]

   The third class refers to “advices informing the decision of a specified Attorney General not to make a retrial application”. Nine documents were identified as answering that description being documents 2 — 10 in the affidavit of Lidia Kaban sworn 12 July 2017. A Schedule of those documents is also annexed to this judgment (Annexure 2). As can be seen from the description, each document comprises legal advice given by an identified author or authors. The Attorney General has objected to the production of those documents.

7. [8]

   In support of the respondent’s application for the Draft Orders is an affidavit from William John Charles De Mars affirmed 19 June 2017. Annexed to that affidavit are documents which are in the public domain and to which the respondent has had access. Included in those documents is Annexure E being the submission of the NSW Police Service dated 6 March 2014, Annexure H being the submission from Allens Linklaters (Allens) dated 6 March 2014 on behalf of the families of the deceased children and Annexure M which is the NSW Government response to the Inquiry.

8. [9]

   There is also annexed (Annexure M) a comprehensive and lengthy report from the Hon James Wood AO QC dated September 2015 (the Wood Report). The purpose of the report was to consider whether s 102 of CARA should be amended. The report examined overseas legislation and that in other states. The conclusion was that s 102 of CARA should not be amended.

Background

1. [10]

   In 2014 the Standing Committee Inquiry extensively canvassed the various unsuccessful police and family applications to various NSW Attorneys General over the previous two decades to retry the respondent. The NSW Government, the NSW Police and the families of the deceased (through their solicitors Allens) each made detailed submissions to the Inquiry about these earlier applications. The Standing Committee reviewed the reasons why each respective Attorney General had declined these applications.

2. [11]

   The overwhelming inference from the material annexed to the affidavit of Mr De Mars is that the Attorneys General had declined the applications due to insufficient prospects of success. The Inquiry noted that family members of the deceased perceived bias in these earlier reviews and determinations. Accordingly, the Inquiry Report recommended, should another application for retrial be submitted to the Attorney General, the merits should first be considered by an independent assessor from another jurisdiction. That did not happen but the Wood Report was prepared in answer to the recommendations of the Inquiry.

Respondent’s submissions

1. [12]

   The respondent submitted that the nine legal advices sought by it were relevant to:

2. [13]

   The respondent submitted that it had been 27 years since the murders took place. In the 2004 Coronial proceedings and the 2006 trial many critical witnesses lacked independent recollection. A number of witnesses were deceased. The fact of delay would inherently prejudice him in a future retrial.

3. [14]

   The respondent submitted that Pt 8 of CARA which enables an application to this Court for retrial following acquittal commenced on 15 December 2006. The application for orders permitting retrials was filed on 16 December 2016 almost a decade later. Apart from a media interview of the respondent last year all the material relied upon by the applicant as “fresh and compelling” was available at the time that the CARA amendments commenced. The respondent submitted that an explanation as to why the Attorney General did not act earlier in relation to a retrial was prima facie relevant to the application for a retrial both on the question of the interests of justice at large as required by s 100(1)(b) and to the specific mandatory consideration of delay in s 104(3)(b).

4. [15]

   The respondent submitted that the Attorney General had expressly relied upon the efforts of NSW Police in making repeated approaches to prosecuting authorities for a retrial and upon the legal advices obtained by the Office of the Attorney General on the basis of which those earlier applications were rejected.

5. [16]

   On that issue the respondent referred to the following paragraphs of the applicant’s written submissions in support of the CARA application:

6. [17]

   The respondent submitted that the affidavit of Detective Chief Inspector Gary Jubelin sworn 16 December 2016 in support of the Attorney General’s application (the Second Jubelin Affidavit) set out the 18 year history of NSW Police and the families of the deceased seeking advice and advocating for a fresh application to the Attorney General. This evidence could only be relevant to the ss 100(1)(b) and 104(3)(b) criteria.

7. [18]

   The respondent submitted that the documents sought in the Draft Orders were thus directly relevant on the face of the Act to the present application and to the respondent’s ability to respond to the Attorney General’s submissions and to the evidence of Detective Chief Inspector Gary Jubelin, on the issue of delay. The respondent submitted that it was therefore in the interests of justice that they be provided to him.

8. [19]

   By way of further background the respondent noted in respect of the legal advices sought in the Draft Orders that on 15 February 2010, Allens on behalf of the families submitted an application to Attorney General Hatzistergos requesting that he apply for a retrial. The substance of the Allens submission was set out in detail in the Inquiry Report (Ch 6). On 22 October 2010 Attorney General Hatzistergos rejected the application. He advised that “after considering a thorough review by the Crown Advocate” which he had requested and consulting with the Solicitor General and DPP, his view was that:

9. [20]

   Attorney General Hatzistergos also challenged the arguments on tendency and coincidence evidence raised by Allens concluding: “while there may be similarities and connections in the evidence, I am unable to agree that these are striking and establish a conclusive nexus [with the respondent].”

10. [21]

    In June 2011 the families through their solicitors, Allens, made another application to Attorney General Smith seeking a retrial. The Inquiry Report stated: “The application was similar in substance to the application made to Attorney General Hatzistergos, but also addressed each of the points refuted by Mr Hatzistergos”. On 8 February 2013 Attorney General Smith rejected the application.

11. [22]

    Considerable detail is set out in the Inquiry Report at 6.24 — 6.27 as to the steps that were taken by Attorney General Smith. These included seeking advice from the then Acting Crown Advocate David Arnott SC, seeking further information from the Police as to the original investigation, seeking advice of the new Crown Advocate Ms Natalie Adams SC and meeting with police and members of the Bowraville community. The Inquiry Report set out the conclusions arrived at by Attorney General Smith as a result of these investigations as follows:

12. [23]

    The respondent noted that the NSW Government submission to the Inquiry stated that the advice from the Crown Advocate Natalie Adams SC was over 80 pages and “considered in great detail the evidence said to be compelling and fresh before concluding that the evidence would not, ultimately, be sufficient to satisfy the Court of Appeal to retry the respondent” (Government submission p 3).

13. [24]

    The respondent noted that the Inquiry Report was tabled in Parliament on 6 November 2014. The Wood Report was publicly released on 18 December 2015. On 24 May 2016 the then Police Commissioner Mr Scipione wrote to Attorney General Upton requesting that she seek a retrial and Detective Chief Inspector Jubelin delivered an 18 volume brief of evidence to the Attorney General’s Office on the same day. It was on that day that Attorney General Upton communicated her decision that the present CARA application should be made.

14. [25]

    The respondent submitted that he was entitled to see the nine legal advices sought in the Draft Orders to explain how despite all the advices apparently concluding that an application for retrial would lack reasonable prospects of success, it was decided by Attorney General Upton in May 2016 that this application should be made. The respondent submitted that he was entitled to access to those legal advices to resolve that issue.

15. [26]

    The respondent submitted that the legal advices were relevant because they might assist in establishing a positive case pursuant to s 104(3)(b) that the Attorney General had failed to act with reasonable diligence or expedition in relation to the CARA application. The respondent submitted that it mattered not that the Attorney General might not advance arguments in his favour in relation to s 1 04(3)(b) because that was a mandatory consideration and the respondent was entitled to mount a positive case in relation to it.

16. [27]

    The respondent submitted that the applicant was invoking an extraordinary discretionary power of this Court under Pt 8 of the CARA. In deciding to exercise that power this Court would be compelled to consider the fact of reasonable diligence and expedition in connection with the retrial application. The respondent submitted that he was entitled to have his legal representatives not only point to deficiencies in the applicant’s case as it might relate to s 104(3)(b) but to mount a positive case by advancing s 104(3)(b) considerations in his favour where they were available.

17. [28]

    The respondent submitted that the policy implicit behind s 104(3)(b) was that if the prosecuting authorities were going to seek to make substantial inroads into the principle of double jeopardy they must proceed with all due haste once apparently “fresh and compelling” evidence had been identified. The respondent said that the history of the provision before it was enacted showed that “reasonable expedition and diligence” had been present from the very first drafting and had been consistently considered significant enough to be elevated to one of the few mandatory considerations. It was not limited to a consideration of the prospects of a fair trial or impact of delay since the time of the original offending (which were separately provided for). The respondent submitted that the “reasonable diligence” consideration was also a feature of the “interests of justice” test. This militated against potential abuses flowing from retrospective application, as a failure on the part of police or prosecutors to act with reasonable diligence or expedition might both indicate and give rise to such an abuse.

18. [29]

    The respondent did not accept that s 104(3)(b) required an objective assessment. If that was so the actual reasons why the application was or was not brought were relevant. Alternatively, even if the test was an objective one, the facts of what actually occurred would still be relevant. The respondent submitted that where a statute imposed an objective standard, its purpose was to be compared against what actually occurred. The respondent submitted that the legal advices sought by the Draft Orders were likely to contain useful information as to what actually occurred.

19. [30]

    The respondent submitted that on the assumption that s 104(3)(b) required an objective assessment, the issue was whether the police and prosecutor’s actual conduct in relation to an application for a retrial had been reasonably diligent and/or expeditious when compared against that standard. The respondent submitted that he required access to the reasons for a decision and advices informing those decisions in order to assess and make submissions as to whether and to what extent police and prosecutors did or did not act with (objectively) reasonable diligence and expedition.

20. [31]

    The respondent submitted that it was impossible to articulate fully the range of scenarios that might present themselves under an umbrella of the prima facie relevance of the reasons why a retrial application was not sought earlier. The respondent submitted that the following scenarios could arise and were “on the cards” as likely to materially assist the respondent’s case.

21. [32]

    The respondent submitted that far from a “fishing expedition”, the reasons why respective Attorneys General decided not to, before the ultimate decision to, bring a retrial application were “on the cards” as able to assist anteriorly the respondent’s case in addressing the mandatory consideration of whether police and prosecutors did not act with reasonable diligence and expedition.

22. [33]

    The respondent submitted that the applicant was invoking an unprecedented power of this Court to infringe upon the long guarded rights of the acquitted person and the interests of justice in the finality of proceedings. This was also the first ever consideration of a retrial application in NSW such that the precise scope of the Court’s inquiry and discretion was untested. In those circumstances, even more so than a first instance criminal trial, the ambit of what might prove to be relevant and materially favourable to the respondent for the purpose of considering whether production is required, should not be narrowly drawn.

Consideration

1. [34]

   Despite the submissions of the respondent I have considerable difficulty (leaving aside the question of privilege) in accepting that the nine legal advices to which access is sought by the Draft Orders are relevant to the interests of justice assessment under ss 100(1)(b) and 104(3)(b) of CARA. It is for the respondent to identify a legitimate forensic purpose for the documents sought in the Draft Orders. Most particularly the respondent has not identified how it is “on the cards” that the documents would materially assist his case. I can understand how the decision not to make a retrial application is relevant to those sections of the CARA and also how the reasons for that decision are relevant but not legal advices which were taken into account when reaching that decision and providing those reasons.

2. [35]

   The issue of whether it is in the interests of justice to quash the verdict of acquittal referred to s 100(1)(b) arises for consideration if the Court accepts the applicant’s argument that there is fresh and compelling evidence against the respondent in relation to the offences in question. What the evidence is and, most importantly, when it was obtained is outlined in the applicant’s written submissions and Detective Chief Inspector Jubelin’s affidavit of 16 December 2016 filed in support.

3. [36]

   The concept of the interests of justice in s 100(1)(b) is expanded upon in s 104 which requires that one fact the Court is to have regard to (a mandatory consideration) in assessing whether it is in the interests of justice is whether any police officer or prosecutor has acted with reasonable diligence in connection with the application. Although this is a mandatory consideration it remains only one factor to take into account and is not determinative. It is conceivable that even if there were a lack of reasonable diligence an application under s 100 could still succeed if it were in the interest of justice to make the order sought.

4. [37]

   The question of reasonable diligence and expedition must turn on the objective assessment of the conduct of the prosecution in identifying and investigating the “fresh evidence” and subsequent conduct and expedition of the prosecution in acting on that evidence.

5. [38]

   Any legal advices provided to Attorneys General are in effect historic and subjective opinions about the matter now before the Court. It is the decisions themselves and the reasons for them which are relevant not the legal and factual analyses of various legal advisors which may have influenced the decisions. The memoranda of legal advice to the decision maker can have no relevance to whether objectively, as a matter of fact, the prosecution has been conducted with reasonable diligence or expedition pursuant to s 104(3)(b) of CARA.

6. [39]

   Put alternatively, the strength of the respondent’s argument that the applicant has not acted with expedition in bringing the application because it could have brought the application much earlier, is not affected by the various legal opinions. Such subjective material does not alter the objective assessment required under s 104(3)(b). It is difficult to see how an assessment of the merits or otherwise of historical legal opinions provided to various Attorneys General could be relevant to the Court making the assessment required under s 104(3)(b). The important matters are the decisions reached by the various Attorneys General and the reasons for them.

7. [40]

   There are a number of difficulties in determining how the Court would treat the consideration of all the various legal advices relating to decisions made not to commence an application earlier, even if such advices were relevant to the issues under consideration. There would seem to be little gain in arguing about the reasonableness of a particular legal advice. This is particularly so when the law in relation to matters such as tendency and coincidence has developed significantly in the years under consideration.

8. [41]

   Another major difficulty in determining the relevance of such legal opinions is that parts of the advices received by the Attorneys General might not have been relied upon in making the decision not to commence an application under CARA. Disputes as to what parts if any of the legal advice were relied upon by the Attorneys General or should have been relied upon would appear to be collateral to the issues raised by the Act and therefore irrelevant to them.

9. [42]

   As the Attorney General’s written and oral submissions made clear, he has accepted that there has been a delay of 10 years between when the CARA came into force and when this application was made. Contrary to the respondent’s submission, the applicant has made no real response to that delay. What the applicant appears to rely upon is that the “fresh evidence” identified in his submissions satisfies the criteria in CARA for a retrial, ie that in all the circumstances (including the delay) a retrial is. something which is plainly in the interests of justice.

10. [43]

    Importantly the Attorney General does not rely on any legal advices obtained in respect of any application. Nor has the applicant mounted any argument based on the reasonableness of the rejection of the earlier applications. It is in fact a matter of public record that various applications were made by the police and the family and rejected. In those circumstances it is difficult to see how the correctness or otherwise of the legal advices upon which those decisions were based is relevant to the issues to be decided by this Court. I cannot see any legitimate forensic purpose which could be served by making the nine legal advices available to the respondent.

11. [44]

    It should be kept in mind that the above observations are made solely in relation to pars 4 — 7 of the Draft Orders which involve the Attorney General. Different considerations might arise in relation to the DPP and the police if the respondent wishes to pursue at a later date the production of the third class of documents identified in pars 1 — 3 of the Draft Orders.

12. [45]

    Another difficulty for the respondent is the application of the “on the cards” test. There is simply no evidence from which it could be suggested that one of the nine legal advices expressed the opinion that there was merit in pursuing a retrial under Pt 8 of CARA. This is particularly so when one keeps in mind that what led to the need for these advices were the submissions of the police (the content of which can be seen from the police submission to the Inquiry), and the submissions of the families’ solicitors, Allens (the content of which can be seen from the submission to the Inquiry). Far from being “on the cards”, the information or opinion which the respondent has submitted might be found involves speculation not deduction or inference.

13. [46]

    It follows that I am unable to find that the availability of the nine legal advices would serve any legitimate forensic purpose in relation to the issues raised by Pt 8 of the CARA in this case. In those circumstances it is not necessary to consider the individual advices and to rule on whether their undoubted privilege has been waived. Given the urgency of this application that is not an undertaking which would in my opinion serve any useful purpose.

14. [47]

    The three letters from Attorney General Hatzistergos and Attorney General Smith to which I have referred at [6] of these reasons are in a different category. They set out the reasons why on these two occasions the decision was made by the relevant Attorney General not to make a retrial application. I regard these as relevant to the issues raised by ss 100(1)(b) and 104(3)(b) of the CARA. This is because they are directly related to a decision of the relevant Attorney General and set out the basis for it.

    1. (1)

       The Attorney General is to produce to the respondent’s legal advisors the three letters from the Attorney General as follows:

    2. (2)

       I decline to order the Attorney General to produce the nine legal advices numbered 2 — 10 annexed to the affidavit of Lidia Kaban sworn 12 July 2017.

    3. (1)

       Documents recording the decision, reasons for decision and/or advices informing the decision of Director of Public Prosecutions Nicholas Cowdery that a charge in relation to the disposal of the body of Clinton Speedy was unsustainable and that a prosecution in relation to the murder of Evelyn Greenup should not be recommenced, on or about 25 May 1999.

    4. (2)

       Documents recording the decision, reasons for decision and/or advices informing the decision of Director of Public Prosecutions Nicholas Cowdery not to seek to rely on tendency and coincidence evidence in relation to Clinton Speedy and Colleen Walker, contrary to Coroner Abernethy’s Report, in 2004-2006.

    5. (3)

       Documents recording the decision, reasons for decision and/or advices informing the decision of Director of Public Prosecutions Nicholas Cowdery, in response to an application by Police, not to make a retrial application, on or about 4 June 2007.

    6. (4)

       Documents recording the decision, reasons for decision and/or advices informing the decision of Attorney General John Hatzistergos, in response to an application on behalf of the families of the deceased, not to make a retrial application, on or about 22 October 2010.

    7. (5)

       Documents recording any other decision, reasons for decision and/or advices (including of the Crown Advocates, Director of Public Prosecutions and/or Solicitor General) informing the decision of Attorney General John Hatzistergos, in response to an application on behalf of the families of the deceased, not to make a retrial application, in or about 2010 (in addition to (4)).

    8. (6)

       Documents recording the decision, reasons for decision and/or advices (including of the Crown Advocates, Director of Public Prosecutions and/or Solicitor General) informing the decision of Attorney General Greg Smith, in response to an application on behalf the families of the deceased, not to make a retrial application on or about 8 February 2013.

    9. (7)

       Documents recording the decision, reasons for decision and/or advices (including of the Crown Advocate, Director of Public Prosecutions and/or Solicitor General) informing the decision of Attorney General Gabrielle Upton, in response to an application on behalf of Police, to make a retrial application on or about 24 May 2016.