R v Rogerson; R v McNamara (No 35)

Earlier in these proceedings, a subpoena was issued at the request of the accused McNamara to the Registrar of the District Court of NSW, seeking production of a large number of documents which are more fully enumerated in the schedule to the subpoena. It is not necessary, for the purposes of determining the present application, to detail the nature of those documents any further.

Upon production of the material, I granted the parties access to it. That access order obviously included access being exercised by the legal representatives of the accused McNamara. In the course of inspecting the material which was produced Mr Reslan, McNamara's solicitor, located a sealed envelope which was endorsed to the effect that it was not to be opened other than by an order of a judge of the District Court of New South Wales, or a judge of any superior court.

Mr Reslan, with commendable propriety for which I am grateful, immediately drew the existence of the envelope to my attention. Upon examination, it became immediately apparent to me that its contents were of a kind which, prima facie, may lend themselves to a claim for public interest immunity.

I determined that the most appropriate course was to provide the material to the solicitor for the New South Wales Police (being the likely claimant) so as to give the Commissioner an opportunity to inspect the material and make some determination. Prior to doing so, I foreshadowed my intentions to the parties, all of whom consented to that course being adopted.

I was subsequently advised by counsel for the Commissioner, Ms Kumar, that a claim would be made.

Yesterday I was provided, in support of that claim, with an open affidavit of Assistant Commissioner Lanyon of the New South Wales Police of 15 March 2016. That was accompanied by a confidential affidavit of Mr Lanyon sworn on the same day, together with exhibit MAL1 to that affidavit. Exhibit MAL1 contains the material which is the subject of the claim.

As is generally the case in matters of this nature, the open affidavit has been provided to Ms Shead who appears for McNamara, but the confidential affidavit has not. The provision of evidence in a confidential form is a practice which is recognised as being appropriate in matters of this nature: R v Meissner (1994) 76 A Crim R 81 at 85; National Crime Authority v Gould (1989) 90 A Crim R 489 at 497.

The inability of Ms Shead to be made aware of the contents of the confidential affidavit has placed her in a position where she has simply submitted to me that I should determine the matter by reference to the balancing exercise contained in s. 130 of the Evidence Act 1995 (NSW) (“the Act”). In conducting that balancing exercise, she has urged that I take into account the issues in the trial, the case which is to be brought by McNamara and the fact that, in the circumstances of the present case, a “cut throat” defence is being mounted by each of the accused.

Section 130 of the Act is in the following terms:

The provisions of s. 130 reflect, in general terms, the common law as stated in Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1 at 38, and Conway v Rimmer (1968) AC 910 at 940.

As well as the material which is the subject of the claim, I have read carefully the confidential affidavit of Assistant Commissioner Lanyon.

I am mindful of the issues in the trial, and of the nature of the case that McNamara seeks to bring. I have taken into account those matters set out in ss. 130(4) and (5) of the Act. Without dealing individually with those matters, and having conducted the balancing exercise, I am satisfied the public interest in admitting into evidence the contents of exhibit MAL1 is outweighed by the public interest in preserving its secrecy and confidentiality. I am satisfied, in particular, that the content of exhibit MAL1 falls into a well-recognised, category of material, disclosure of which the courts have accepted may harm the public interest. In that respect, I have had particular regard to observations made in Sankey (supra), as well as the observations of Kirby P (as his Honour then was) and McHugh JA (as his Honour then was) in Cain v Glass (No 2) (1985) 3 NSWLR 230 at 233 and 247 respectively.

It is obviously necessary that the confidentiality of the material contained in exhibit MAL1 be preserved. For that reason, it would be inappropriate for me to deal with the matter in any further detail. However, for the reasons expressed, and having conducted the balancing exercise, I uphold the claim which has been made on behalf of the Commissioner.