Criminal law: December 2019

HT v The Queen [2019] HCA 40

Affidavits of assistance – closed material procedures – public interest immunity

The High Court has determined it is not permissible to use ‘closed material’ procedures on sentence, in which an affidavit is provided to the judge but the contents not disclosed to the offender. Instead, the solution is that the parties are to approach the court in advance and seek orders which are tailored to the circumstances of the particular case, allowing (through creative means, if necessary) people representing the offender to have access to the material, but still maintaining as much secrecy as possible.

The appellant was convicted of eleven fraud offences. A District Court (‘DC’) judge sentenced her to three years and six months imprisonment with a non-parole period of 18 months. The Crown appealed against the inadequacy of that sentence to the NSW Court of Criminal Appeal (‘CCA’). That Court upheld the Crown’s appeal and re-sentenced her, essentially doubling the sentence to six years and six months, with a non-parole period of three years and six months. Both in the DC and on appeal to the CCA, a key issue had been the assistance she had given to a law enforcement authority.

In the DC, an affidavit was produced detailing her assistance to authorities. The prosecutor was allowed to read it, but the appellant’s counsel was told they would not be allowed to read that version of the affidavit; if they wanted to read a version of it, then it would be significantly shorter (and, by inference, less helpful). Given that ‘choice’, defence counsel agreed the longer form of the document could be tendered without having been read by anybody in the defence.

In the CCA on the Crown appeal, defence counsel was not so sanguine, and sought access to the exhibit. The Commissioner of Police opposed access on the basis of public interest immunity (‘PII’), and the Crown supported that position. The CCA allowed only one sentence of that document to be disclosed to defence counsel. Bearing in mind the Crown appeal eventually doubled the sentence, the appellant appealed to the High Court (‘HCA’) and was granted special leave to argue a ground dealing with the asserted denial of procedural fairness inherent in the process which had been followed. Strictly speaking, the appeal was only concerned with the process followed in the CCA, but as will be seen the judgments go further.

Somewhat uncharacteristically for the current HCA, the matter resulted in three separate judgments, even though six judges (yes, it was also an unusual number) heard the matter, and all of them agreed about the ultimate outcome.

The primary judgment came from Kiefel CJ, Bell and Keane JJ. In initial comments which will be news to nobody, their Honours set out the fundamental importance of procedural fairness to court proceedings, and that the content of that concept will depend on the circumstances of the particular case (at [17]-[18]). Defence counsel had been given no real choice about the matter, and this judgment rejected the argument that, because the offender had been the one providing the assistance, she was able to give instructions on it. In truth, the appellant had no way of knowing whether the affidavit detailed all the assistance she had provided and the risks she had taken in providing it, so her counsel had no way of checking instructions against the affidavit (at [23]-[25]). The result was that the appellant was denied procedural fairness. But the question then was whether that denial was justified (at [27]).

Their Honours proceeded to reject the argument which had been made by the various prosecution entities to the effect that PII justified the ‘closed material procedure’ which had been undertaken. Closed material procedures and PII procedures are fundamentally different. If it is held that documents should be produced and thereby disclosed (i.e. if they are not subject to PII), they are available to both parties. If they are not to be produced, then they are not available to either party and the court cannot use them (at [32]). The withholding of evidence like the affidavit in this case is not a part of the common law relating to PII, even by analogy. In reality it would involve the creation of a new rule which would have blanket application in cases like this one and would reduce procedural fairness to nought (at [33]).

Their Honours then rejected other sources of legislative power which it was asserted would have justified the procedure undertaken (at [35]-[38]) and also rejected the claim that the procedure was justified because of what were said to be the ‘exceptional’ circumstances of this case.

In fact, their Honours expressed doubt about whether the circumstances of this case were truly exceptional, given that it is hardly the first time that a police informer has come to be sentenced (at [39]-[41]). Indeed, in a later discussion about what occurred in the DC, the HCA found (contrary to a submission made by the Crown) that it was common to see the process adopted here, where the offender is offered a longer but undisclosed statement, or a shorter one which counsel may read (at [48]).

That said, in one of the main points of departure between this judgment and the others, their Honours considered that a superior court may tailor its procedures to a particular case. The real question which arose was how to provide a sufficient level of procedural fairness, but also maintain a sufficient level of confidentiality of the sensitive information (at [42]).

The solution, according to their Honours, is ‘tailored orders’. Examples given included ‘confidentiality rings’ being placed around disclosure and the persons who are permitted to see the confidential material. Or arrangements allowing access to a person who represents the party from whom it is necessary to maintain confidentiality. Orders could be made for inspection by an independent solicitor reporting directly to the court. Orders for inspection might be limited to the party’s lawyers or experts, and not extended to the party themselves. In cases such as this one, it ought to have been possible to make orders which would have met the concerns of the Commissioner, for example by providing the appellant’s counsel with access to the exhibit on terms which would have enabled him meaningfully to take instructions and make submissions. The relevant party (in this case, the offender) should have as full a depth of disclosure as would be consistent with adequate protection of the secret (at [43]-[45]). The position is the same in the DC (at [49]), and it may be that it will be rare that there is a case where a tailored order is not possible (at [50]). No concluded view was expressed about whether a party can consent to a closed material procedure (also at [50]).

Gordon J (at [62]ff) also agreed that there had been a denial of procedural fairness, and with the orders of the primary judgment. Indeed, with great respect to her Honour, her separate judgment is so similar to that of the plurality (albeit a little more concise) that it is difficult to see why her Honour did not just join in with that one. It might be that her Honour’s main disagreement lay in her distinction between what should happen before the hearing, and what should be done at the hearing (i.e. given that at the hearing the exhibits might become public). In practice, however, her Honour’s examples of orders that can be made to protect the confidentiality of material, and the procedures to be adopted, are very similar to those outlined by the plurality (see [76]- [87]).

Nettle and Edelman JJ (at [55]ff), in their judgment, similarly agreed with the outcome (that the procedure adopted was unjustified). But they took a different view about what orders

could be tailored in the absence of statutory authorisation (at [55]-[56]); basically it seems their Honours were uncomfortable with the extent to which the plurality had simply implied sweeping powers. That said, in broad agreement with the plurality, their Honours considered it is not open in a criminal sentencing procedure to deny access to some or all of the assistance material (at [58]): whatever the sentencing judge sees, the prisoner (sic – in NSW, the ‘offender’) must be able to see, and must be able to give instructions on (at [59]). In fact, in their view, the occasions should be rare when it is impossibleto draft a statement so that it fully and completely conveys the nature, extent, and utility of assistance, but does not mention names and precise details which might put people or operations at risk (at [60]). Moreover, a plea hearing can be held in camera or orders may be made to prohibit or restrict disclosure of sensitive information by the prisoner (sic) or their counsel (at [61]). If, however, all those qualifications are thought to be inadequate, it is for Parliament so to provide, by legislation clearly expressed (also at [61]).

On the basis of the plurality’s judgment, and given the unanimity in the finding that the procedure adopted here was impermissible, practitioners should expect a different approach to matters involving assistance in the future. With the term ‘tailored orders’ likely to become the term coined for the solution, practitioners at both ends of the bar table will presumably need to start getting creative about how secrecy can be protected, but material nevertheless disclosed to offenders.

Purves v R [2019] NSWCCA 227

Commonwealth sentencing procedure – s 16BA – equivalent of Form 1

In this decision, the CCA has held that it is essential to the procedure in s 16BA of the Commonwealth Crimes Act that the offender is actually asked, by the Court, that they want the offences taken into account on sentence.

The applicant pleaded guilty to a range of Commonwealth offences relating to child abuse or procuring child abuse material. There were also three offences to be taken into account under s 16BA of the Crimes Act 1914 (Cth), which is the Commonwealth equivalent to a Form 1 procedure. He was sentenced to seven years and six months, with a non-parole period of four years and six months. He appealed, identifying a number of grounds (none of which are described or resolved in the judgment).

On the appeal, the Crown identified  a procedural error in the sentence proceedings. In a blessedly short judgment, Simpson AJA (with whom Fullerton J agreed; and Bell P also agreed but with a couple of brief additional observations) outlined the procedure and the impact of failing to strictly adhere to it.

Section 16BA of the Commonwealth Crimes Act provides a procedure for taking into account offences for which the offender admits their guilt and asks that they be taken into account for sentencing on principal offences. Before embarking on the procedure, the court is required to be satisfied of a number of things, including that a list has been filed, and that it is appropriate to adopt the procedure. The procedure also requires the court to ask the convicted offender whether he or she admits guilt to the additional offences and wishes that they be taken into account. By s 16BA(2), if they respond affirmatively to each question, they can be taken into account (at [4]).

In this case, the procedure was not brought to the judge’s attention and was overlooked. The judge did not make the statutory inquiries, and the applicant did not, therefore, make the necessary admissions and did not state that he wished the additional offences to be taken into account. Nevertheless they were taken into account. The procedural step is an important one, and to take into account the additional offences in the absence of that step was an error (at [5]). For technical reasons, the error couldn’t be remedied, so the matter was remitted to the District Court for sentence (at [6]-[7]).

The explicit requirement in s 16BA that the court must ask an offender whether they admit their guilt does not appear in the procedure provided by the NSW legislation; at least on the face of it, this decision appears to be limited to the procedure to be adopted in Commonwealth sentencing matters.

Darestani v R [2019] NSWCCA 248

Possession of firearms – toys – time of possession

In this decision the CCA has held that when deciding whether something is an imitation firearm, the use and intention of the accused at the time of possession is relevant to the question of whether a toy falls within the statutory definition for the purpose of the offence. The applicant was charged with two counts of possessing a pistol without a permit, and two counts of intimidation. The two complainants worked at a hire car company and the applicant went there to get a car. He had a suitcase with him. He was refused a rental because he didn’t have a phyical Driver Licence with him. There was an argument, culminating in the police being called because the applicant refused to leave the car yard. In the meantime the applicant reached into his suitcase and pulled something out; one of the complainants said what he pulled out looked like a gun and it made a clicking noise (the other complainant saw something pulled out, but not what it was). When he was eventually arrested, the applicant was found in possession of two imitation pistols. The applicant’s case was that they were toys, and (more to the point) they fell within the children’s toy exception to the offence for possession of an imitation firearm, found in s 4D(4) of the Firearms Act (‘the Act’). The applicant was convicted at trial. He appealed on the basis, amongst other things, that there was a miscarriage of justice because the Crown had failed to disprove that the items were produced and identified as children’s toys.

One issue which ultimately became important (and, plainly, will be important for future cases) was the specific point in time at which the Crown had been required to prove possession. In this particular case, it became clear the relevant point was when the applicant was arrested, and not the time at which he produced one of the firearms in the car yard (at [42]-[47]).

One other dispute between the parties was how to read s 4D(4) of the Act which relevantly provides: ‘an imitation firearm does not include any such object that is produced and identified as a children’s toy.’ The dispute was whether that provision drew attention to the purpose for the manufacture of the object and its intrinsic qualities, or the circumstances in which the object was being used at the time of possession. Here, the Court (Price J, with whom Hoeben CJ in CL and Lonergan J agreed) found the circumstances at the time of possession are relevant: the verb ‘identify’, in this context, means to ascertain or assert what a thing is. It gives rise to consideration of matters intrinsic to the object, its use, and the intention of the person using it (if the object is being used at the time it is asserted to be in a person’s possession) (at [60]-[61]). The example given was of a plastic rifle which would normally be regarded as a children’s toy but might lose that identification if pressed into the back of another person’s head with a threat to shoot. The use, and the intention which accompanied the use, would identify the plastic rifle otherwise than as a children’s toy (at [62]).

In this case, because of the timing issue which was identified above, the past use of the imitation firearms in the car yard was irrelevant – the real question was at the time of arrest, which was when (in the circumstances of this case) the question of identification of the item arose (at [83]). Here, there was nothing in the applicant’s use of the pistols at the time of arrest which asserted them to be other than a children’s toy given they were simply in a bag (at [90]), so that the convictions for the firearms offences were quashed and verdicts of acquittal were entered.

Thomas Spohr is a solicitor, Legal Aid NSW and a member of the Law Society of NSW Criminal Law and Ethics Committees.