Shoukan v Jarvie & Ors M73/1994 [1994] HCATrans 45 (16 September 1994)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M72 of 1994

B e t w e e n -

AMAL TAWIL

Applicant

and

NEIL WILLIAM JARVIE, SCOTT

DAVID ANDERSON and THE

MAGISTRATES COURT OF

VICTORIA AT BRUNSWICK

Respondents

Office of the Registry

Melbourne No M73 of 1994

B e t w e e n -

GEORGE SHOUKAN

Applicant

and

NEIL WILLIAM JARVIE, SCOTT

DAVID ANDERSON and THE

MAGISTRATES COURT OF VICTORIA

AT BRUNSWICK

Respondents

Applications for special leave

to appeal

MASON CJ

BRENNAN J

DAWSON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 16 SEPTEMBER 1994, AT 12.45 PM

Copyright in the High Court of Australia

________________

MR R. MERKEL, QC: If the Court pleases, I appear with my learned friend, MR G.J. LYON, on behalf of the applicant, Shoukan. (instructed by Haines & Polites)

MR B.D. BONGIORNO, QC: If the Court pleases, I appear with my learned friend, MS K.E. JUDD, on behalf of the first and second respondents. (instructed by J. Buckley, Solicitor to the Director of Public Prosecutions (Vic))

MASON CJ: The Deputy Registrar has been informed that the third-named respondent does not intend to take an active role in this proceeding and will abide by the decision of the Court. Yes, Mr Merkel.

MR MERKEL: If the Court pleases, the issue raised in the present case has been accepted by each of the courts - - -

MASON CJ: Is it convenient for these two cases to be heard together or - - -

MR MERKEL: It is, Your Honours.

MASON CJ: Well, perhaps we ought to call the second case as well and take the appearances.

MS L. LIEDER, QC: If the Court pleases, I appear with my learned friend, MS J. PERLMAN on behalf of the applicant, Tawil. (instructed by Valos Black & Associates)

MR B.D. BONGIORNO, QC: If the Court pleases, I appear with my learned friend, MS K.E. JUDD, for the same respondents. (instructed by J. Buckley, Solicitor to the Director of Public Prosecutions (Vic))

MASON CJ: Yes, Mr Merkel.

MR MERKEL: If the Court pleases, whenever this matter has come before appellate courts to date, the appellate courts have treated the issue raised as one of fundamental importance to the administration of criminal justice; that has been the case in New Zealand, in Queensland and also in Victoria.

DAWSON J: Why should we decide this at this stage?

MR MERKEL: Your Honour, I was going to go on to the reasons for that. I should also add that the Director of Public Prosecutions has also accepted the importance of the matter. The reasons why it ought to be decided at this stage are several: the first is that the present state of the law on this subject-matter in Australia is now that there are directly conflicting decisions of the appellate courts in Queensland and Victoria which, we say, as a matter of some importance and urgency, require resolution. The situation that presently prevails means that in Queensland the courts will be bound to follow the Supreme Court decision and deny a jurisdiction to grant the public interest immunity contended for. The contrary result will follow in Victoria. The matter will undoubtedly come before the courts in other States, and probably already has, and they will have to choose between Queensland and New Zealand or Victoria, and that leaves a very important area of Commonwealth offences unresolved and, in particular, the way in which section 79 of the Judiciary Act may apply, and - - -

MASON CJ: And you are contending for no jurisdiction?

MR MERKEL: We contend that there is no jurisdiction to grant the class - - -

MASON CJ: None at all?

MR MERKEL: We say, Your Honour, there is none at all to grant the class immunity which His Honour has found to exist in the present case. His Honour's decision in the Full Court is not an immunity arising by reason of the facts or circumstances in a particular case. His Honour has found that two categories, previously not regarded as attracting public interest immunity, do now attract them. The first is that any police undercover operative is entitled, by reason of that fact alone, to claim public interest immunity and any witness in any court who has an apprehended fear by reason of being a witness, is also entitled to claim that public interest immunity and that those two groups as a class will automatically take the court into the balancing exercise.

DAWSON J: The matter is at an interlocutory stage, is it not?

MR MERKEL: Not - - -

DAWSON J: What has happened? Has there been a committal?

MR MERKEL: The committal, Your Honour, was interrupted by reason of the application of the DPP to challenge the ruling of the magistrate and we put before His Honour Mr Justice Beach and in the Full Court that the court should decline to exercise its jurisdiction and the matter should proceed in the normal course. Both courts have rejected that approach at the behest of the Director and we say that now, in effect, the applicants are confronted with the worst of all worlds if they are forced to go back on the basis of the decision of the Full Court based upon the Director's own plea, in effect, to Mr Justice Beach that you should deal with this, because this matter is one of ongoing day-to-day importance, because this issue will continually arise in the criminal justice system. So it is not just this case that requires resolution. I will take Your Honour to the passage where His Honour refers to that.

DAWSON J: We do not know what is going to happen. For all we know, there may be a plea of guilty.

MR MERKEL: I think, Your Honour, the problem that arises in the present case, and I need to endeavour to deal with this in a way in which we would say, step by step, it would be an injustice for the Court not to deal with it, but the problem in the present case, Your Honour, is that has not been foreshadowed, indeed the matter has come before the committal magistrate on the basis of a fully contested committal hearing.

DAWSON J: Well, it has happened before in this Court that this Court has ruled against granting leave and allowing an application and the accused had pleaded guilty thereupon.

MR MERKEL: Your Honour, I understand that if anything can happen that at the moment the way in which the matter has been proceeding in the Magistrates Court is this is a matter where there is a challenge.

DAWSON J: This Court has repeatedly said it will not interrupt criminal proceedings at an interlocutory stage unless the circumstances are very exceptional.

MR MERKEL: I follow that, Your Honour, and we were conscious of that matter, in this case from the outset, that not just this Court, but appellate courts, whether they be single judge or Full Court of the Supreme Court, would adhere to the same principle on the same basis, but this case has been one where at the behest of the Director that principle has been found to be overridden by the public importance, or if I can adopt Your Honour's word, the exceptional nature of the case. May I say this: this is not dissimilar to a case recently the subject of a grant of special leave in this Court; it is Carter v The Managing Partner, Northmore Hale Davy & Leake & Others, when this Court, constituted by Your Honour Justice Brennan and Justices Gaudron and McHugh, found that the issue of privilege, raising an issue, in effect, at an interlocutory stage, was one of great importance and arises in a way that cannot be dealt with conveniently without delaying or interrupting the process of criminal justice, and we would say this: the submissions we wish to put, Your Honours, raise exactly the same point. But could I go through it step by step, if I may? We say that the central problem now is - - -

MASON CJ: If I could interrupt you to say, Mr Merkel, we will adjourn at this stage.

AT 12.53 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.22 PM:

MASON CJ: Yes, Mr Merkel.

MR MERKEL: If the Court pleases. I had indicated to Your Honours this morning at the adjournment that there were conflicting decisions. Can I indicate now the reasons why we say this is an exceptional matter and it if appropriate for the Court to grant special leave at this stage. Any court dealing with the matter - and I am instructed that there are already problems arising and in one particular operation, Afghan, the point has already been raised of immunity and is awaiting a decision in this matter. But thus far, five judges have given judgments in favour of the existence of the immunity and in Australia and New Zealand, nine have been against it.

The problem is not resolved by delay because the courts, having now been informed by the judgment of the Supreme Court that a new class of immunity is created, and not making a decision in respect of the particular case, and at page 46 and 72 -73 of the application book, His Honour, Mr Justice Brooking, supported by their other Honours, have made it clear that this is a new category in all cases and the category has been created by analogy of extension of the informers' immunity, which we say arises in totally different circumstances and for a different purpose. So that new category of immunity will give rise to endless applications throughout the country in courts for the existence of a jurisdiction which, we say, does not exist, and we say that that inevitably will cause great harm to the criminal justice system.

The second point we would say about the harm is that this is an unusual category of immunity because it truncates inquiry into a matter which is important from the outset, so one never gets to the question that one may find in other areas where the court comes to examine whether disclosure of the content of particular categories of information may or may not prejudice an accused. This is a case where one gets on what was described by Mr Justice Richardson in the Court of Appeal in New Zealand as a slippery slope. Once one starts on the entitlement to conceal identity, one has to ask where does the concealment right stop. So we say that this has been held by courts against the existence of the immunity as a category to be a deprivation of an accused fundamental right of protection in a committal hearing and at trial to investigate a line of inquiry and undertake a line of inquiry, which may be critical to the question of credit in respect of the undercover agents.

We would submit that the second reason why it is appropriate at this stage is by definition it is a matter that cannot really arise on the appellate process my learned friend has put as the appropriate way for it to arise. His Honour at page 50 annunciated the test of requiring an accused to be able to get access to the identity of an undercover agent as requiring the accused to discharge the burden of showing the court there is good reason to think that disclosure of identity might be of substantial assistance in answering the case. The very line of inquiry which the courts have accepted is one as of in right in an accused is to embark upon a line of inquiry stemming from the identity of the accused to endeavour to ascertain whether that will be of assistance to the case. So by, in effect, truncating the line of inquiry by not enabling it to occur, an accused will never be able to satisfy the test annunciated by His Honour.

DAWSON J: But would it not be better to test these things against the factual background provided by a trial?

MR MERKEL: But, Your Honour, it will never arise because if the right to disclosure and investigation in respect of identity is denied, one will never be able to establish, at trial or on appeal, the consequence of that denial, because you will never know the identity of the person and you will never know whether inquiries which, until recently, have been regarded as a fundamental right of an accused and never been denied, would have yielded results that entitled that accused to attack the credit of the undercover agents, so that the consequence of His Honour's - - -

DAWSON J: But it will be more apparent whether the credit of those agencies is something that is critical or not.

MR MERKEL: But, Your Honour, that is exactly the situation that was before the magistrate, that the material before the magistrate showed this was a strongly contested matter. The transcripts that were said to constitute the Crown case were shown on the evidence given by the undercover agents to not accord with the statements they made and it was argued before the magistrate on the basis that both accused will put the credit of the undercover agents in issue, and examples were given in the transcript before the magistrate as to why that was a real issue. There were conversations that were relevant that were not tape-recorded and there were associations and persons involved in the matter who were well outside the tape-recorded conversations. So that before the magistrate it was said that the credit of the undercover agents was a matter in issue, as far as the defendants were concerned. The Crown's response: "Well we will only rely on the tapes", but that was no response as to a credit issue; they cannot negative an attack on credit, particularly where the tape does not itself record part of the conversation said to be in the statement to have occurred, and we say that there is therefore nothing hypothetical about the importance of this issue in the present case nor, we say, can there ever be because this very issue of undercover agents, as was pointed out in the Court of Appeal in New Zealand, inevitably raises the evidence of persons whose job it is is to deceive and lie to get into a situation where their undercover agency will be proved to be effective.

Now, we say, inherently in the nature of the activity, is this problem of credit but we say - - -

DAWSON J: But ultimately the question may well be whether there was a fair trial or not in circumstances, and it is very difficult to decide questions like that in the abstract.

MR MERKEL: Your Honour, the way in which the courts have approached it to date - and I agree with Your Honour, but the problem with the test annunciated in the Full Court of an accused at the outset at committal, which until now had always availed the accused of a fundamental right to make these inquiries, so that the accused was able to attack the credit in a committal and at trial, is denied by this principle, but the effect - - -

DAWSON J: Well, it is very easy to understand why that was done in this case because if they were successful in the submissions they made there would be no evidence against them, would there?

MR MERKEL: Well, Your Honour, that - - -

DAWSON J: Because, as I understand it, the undercover agents have declined to give evidence if, in fact, they had to reveal their identity.

MR MERKEL: Your Honour, that is another problem about what the Director has done in this case. Before His Honour Justice Beach and the magistrate that would have been the end of the charges because the police had indicated, as part of the basis of establishing the immunity, that they would not give evidence if required to disclose their identity. In the Full Court they then changed their position and then after, in effect, having the case ruled against them said if the immunity does not exist the agents would be subpoenaed, but that does not undo the damage generally. So they have, in fact, changed their position throughout, but it does not really solve the essential problem, Your Honour, of the existence of the category of immunity, which we say the law has never hitherto recognised, and the catch-22 an accused will be in, he will never be able, and `she' in the present case, would never be able to establish they were denied a fair trial, because they will never be able to establish what inquiry as to the identity of the undercover agents would have yielded and, therefore, if they go to trial - fail - they will have to show the discretion exercise against them was wrong.

Secondly, that it resulted in prejudice to the conduct of their trial which, by definition, they can never establish because they will not, at that stage, nor at any other time, know the identity of the accused. That is why His Honour's test, taken by transferring the principles in relation to the concealment of identity of informers who do not give evidence, to police undercover agents who give evidence as witnesses, is unworkable.

DAWSON J: His Honour really did not do that, did he? He relied on the public interest immunity exception.

MR MERKEL: With respect, Your Honour, if Your Honour looks at the application book, His Honour at pages 72-73, at the bottom of the page, annunciated the class protection, but when His Honour said:

I have said that in my view the protection of undercover police operatives should be recognised as a basis for the grant of public interest immunity.

That was a reference back to page 46 where, in the middle of the page, His Honour at line 15 said:

The considerations which have led to acknowledgment of the protection of informers as an aspect of the public interest should also lead to recognition of the protection of undercover police operatives as a matter of legitimate public concern. For the considerations are essentially the same.

And then His Honour annunciates a test at page 50, at line 25, which is directly translated from His Honour's view as to the test applicable to police informers, so that:

it must be demonstrated that there is good reason to think that disclosure of the informer's identity may be of substantial assistance to the defendant in answering the case against him.

So we say that this is not a matter, in any real sense, that would ever be able to be resolved by the matter proceeding to trial and a great injustice would be done to an accused in those circumstances, particularly where, until now, the Director has contended himself that resolution of this issue is a matter of public importance and the administration of the criminal justice system should be interrupted for that purpose.

The passage where that appears is at page 28 in Mr Justice Beach's judgment where His Honour was prepared to interfere and resolve the issue on the basis that the Director said many other cases will arrive where this issue needs resolution.

So we would submit that for those reasons this is a case where special leave should be granted to resolve what will be a daily dilemma in the criminal courts throughout Australia in respect of a category of immunity which hitherto was never found to be necessary, yet police operatives are as old as the police, witnesses in a special situation of some apprehended fear are part and parcel of the criminal justice system, yet this new policy of law has been brought about by a change of policy within the police force to accommodate the exigencies of this case after these persons had been involved in the conduct, and had been involved in a situation where they were prepared to expect they would be called as witnesses.

The last point we wanted to make is the DPP's conduct of the case would not make this one where special leave should be refused on this ground. The Director had until now always indicated that this is an issue that ultimately would have to be resolved in this Court because of the conflict of authority the Director was seeking to create. In effect, it is changing the goal posts after they won in the Full Court. They now turn around and say this should not go any further, it disrupts the criminal process, where they had put the contrary view to Mr Justice Beach and the Full Court.

We would also say the Director's position is somewhat anomalous because they said there would be no calling of evidence before the magistrate, Mr Justice Beach, changed course to, in effect, get a different situation in the Full Court, and finally conceded in the Full Court for the first time there must be disclosure to the court of the identity of the police undercover agents, but the court is then involved in concealing that material from the accused, and we say, what possible function or purpose could the criminal justice system have in those circumstances. I think I had virtually concluded, Your Honour.

MASON CJ: Your time has expired.

MR MERKEL: If the Court pleases.

MASON CJ: Ms Lieder.

MS LIEDER: If the Court pleases, we respectfully adopt the majority, indeed all of the submissions urged before this Court by our learned friend, Mr Merkel, and we seek to add certain points on the matter.

The first aspect is of the interlocutory aspect of these proceedings and again we would urge on the Court, without repeating the submissions put by Mr Merkel, that that was the preliminary point taken by the then respondents, and at both levels, both before His Honour Mr Justice Beach and before Their Honours of the Full Court of the Supreme Court of Victoria, it was said by the courts there that the matter was sufficiently important and so exceptional in nature as to justify overriding what has been an essential rule of procedure. We would respectfully submit to the Court that we are more or less bound to accept that that is so. It was upon the urging of the Director of Public Prosecutions that it was put before both levels of the court that there were a large number of cases dependent for their conduct upon resolution of this point, and we say that surely must remain the situation. It is for that reason that the matter is brought before this Court, despite the fact that we are very mindful that it is only in exceptional circumstances that this Court will seek to interrupt matters at an interlocutory level.

We would submit that the primary and, indeed, the sole issue does appear to be one, in our respectful submission, of whether or not there can be said to be any jurisdiction in a court to withhold from the accused person the name of a person who is about to give evidence. In our respectful submission, not only has it never been done, it is hard to see how it could be done. It would be our submission that all the cases that have been urged upon the courts at various levels by the now respondent, then applicant, have relied upon an interpretation or an extrapolation of basic principles as they relate to the aspect of public interest immunity in relation to disclosure, as opposed to identification.

In our submission, disclosure of material that relates to the revelation of the identity of, say, an undercover police officer or an informer, is an entirely different category from identification of such a person, and the difficulties that are faced here would be, in our submission, as follows: there would be no degree of satisfaction in, for example, being able to summons from the appropriate authorities, information regarding an undercover operative, without some form of binding identification of that person. Your Honours will appreciate that the identity of a person is that means whereby the background of a person can be, in so far as it is relevant, investigated, and this is particularly important in criminal matters.

If, for example, it could be said, that the information could be forthcoming by means of an adoption of an identification process that did not depend upon the revelation of the identity of the person, there might be some force, in our respectful submission, in the arguments put before this Court by the respondent, but we say that there simply is no such procedure available.

What is in fact being said here, in our respectful submission, by the Full Court of the Supreme Court of Victoria, is not just the creation of new categories of persons who are able to avail themselves of a public interest immunity but, in fact, the creation of a category of evidence which can, therefore, never be tested in any shape or form. His Honour, Mr Justice Brooking, made a particular point of extending, in our respectful submission, the category of public interest immunity, not just to police operatives or undercover operatives, but to witnesses who find themselves or may be afraid to give evidence. Now that is an extension, in our respectful submission, which is novel and unprecedented and, in fact, has a much greater potential for miscarriage of justice than if it were simply limited to undercover police operatives. His Honour particularly made that point, as Your Honours will be aware, at page 73 of his judgment.

It would seem therefore as a logical extension of what was said by the court that in every case where there is a witness who may have a claim or a potential claim to be in fear or said to be in fear of the accused person and, if I may say by way of parenthesis, it is hard to conceive of many criminal cases where there would not be such a witness, then the identity of that witness would be withheld from the accused. That has never been the law and, in our respectful submission, the reason it has never been the law is because there is simply no jurisdiction for a court to order that negation of disclosure.

In our submission, all the cases that relate to non-disclosure of identity have been those concerned with non-publication of the identity of the witness and therefore it is of little use for us to urge upon this Court consideration of the various cases because that is what they all revolve around. The only exception would be a comment made by the honourable Mr Justice Murphy in the case of Alister v The Queen, which is part of the authorities that we have cited to this Court, where His Honour at page 431 of that judgment postulated that it might well be that if in fact the balancing exercise which is applicable to public interest immunity came down in favour of non-disclosure, then in some circumstances, "the proper course may be to abandon the" proceedings altogether "or for the court to stay" them.

But we say that it need not get to the point, because there is no basis, in our submission, for there to be an extension of the categories of public interest immunity to the point of non-disclosure of a witness's name before the person against whom the evidence is being given.

We say that this is perhaps particularly apposite in relation to the Crown's concession. The Crown concedes that it would be entirely inappropriate for the name of the witness to be withheld from the court itself. Now we fail to see, with the utmost of respect, how this could be and how this could stand together with the arguments adumbrated in support of the proposition. If the court is to be in possession of the name of the witness, what use - we ask this hypothetically - is to be made of that name. If in fact the court had the function of being an investigative magistrate, such as happens in the civil law jurisdictions, perhaps we could see some use to it, but, in our submission, that very concession shows perhaps the flaw in the argument itself. One cannot conceive, for example, of the court being able to do anything at all with that name, save have it on the court file. It would not be appropriate for the court to carry out its own investigations and, indeed, it would be inconceivable that it should do so.

Now clearly, however, the concession must be on the basis that someone somewhere has to have the name of the witness. The only reason for that could be that it is the Crown itself who concedes that it would be inappropriate for a witness to be giving evidence before a court where that identity is not known at least to the court. But if the court can do nothing with that identification or with that name then, in our respectful submission, that does not assist and, indeed, it begs the very question that this Court is being asked to answer.

In our respectful submission, there is no jurisdiction that we can see or that we can find in any of the authorities that would permit the court - - -

MASON CJ: But why has not the court got power over its own proceedings?

MS LIEDER: It does, with the utmost.

MASON CJ: Well, if it has, how can you say there is no jurisdiction to do this?

MS LIEDER: The court has power to control its own procedures and to ensure that the procedures before it are best calculated to ensure that there is a proper conduct of matters before it. That does not extend however, in our respectful submission, to what might be called, certain inalienable rights or fundamental principles.

MASON CJ: But assume a case in which it was clear that no advantage could be derived by the defence from disclosure of the identity: why would not the court have power then to make an order?

MS LIEDER: Because the very question of whether or not any advantage might or might not accrue to the defence would not be, in our respectful submission, a question that should be asked.

MASON CJ: But that seems artificial to say that, quite artificial.

MS LIEDER: Yes, I take Your Honours point. But, for example, a court's power to control its own procedures could not, for example, extend to a reversal of the onus of proof, no matter how expedient it might be to do so.

MASON CJ: But this is not a reversal of the onus of proof.

MS LIEDER: No, of course, it is not. However, it is an example that I am giving that there is a limit to the control.

MASON CJ: But it does not seem a relevant limit to the question that arises here.

MS LIEDER: Well, no that is not this case though, Your Honour. Here, I do not believe that there is any dispute at all about the fact that the issue of credit of the witnesses would arise.

MASON CJ: Not at all, in this case, but the question is, is there an absolute limit and prohibition on the exercise of a power of this kind, because that is what you are contending for?

MS LIEDER: Yes, that is the real issue, yes. In our respectful submission, yes, there is, and the reason that there is is because it is, in fact, a fundamental right for the accused person to know the identity of the person giving evidence against them. Now, if that is not so then, of course, one enters into the aspect of the balancing exercise, that in some cases then one would have to look and see whether the need to know the name should be balanced against what damage might be done to the revelation or disclosure of the name, but that is our whole point here.

In our submission, once one accepts the proposition that a court may have this discretion, then all the aspects that attach to public interest immunity, et cetera, must necessarily apply, and we do not dispute that, and we agree that the categories, for example, of public interest immunity are not closed. Our fundamental point is that the right to know the identity of the person giving evidence is simply a fundamental - - -

DAWSON J: But that is begging the question. You say "right". You have a fundamental right to a fair trial, but that is the question, is it not?

MS LIEDER: There are certain fundamental rights, in our respectful submission, Your Honour. Of course, the overriding one is the fundamental right to a fair trial but contained within that are certain fundamental rights that either fall under the umbrella of it or, alternatively, speak for themselves. If - taking Your Honour's point - it can be argued that to determine whether or not a person has a right to know the identity of the person giving evidence is simply one way of determining whether there is to be a fair trial, then the factual dispute or the issues - - -

DAWSON J: The question is the person has a right to know the identity of a witness if to deny him access to that identity would.....to deny him a fair trial; that is what it amounts to, is it not?

MS LIEDER: Even so, Your Honour, even if that were to be the case, that does not involve, in our respectful submission, an analysis of whether, under any particular circumstance, the denial of that identity would deny that person the right to a fair trial. Our essential point - - -

BRENNAN J: But your proposition is that the principle that has been espoused in the court below does not advert to "fair trial".

MS LIEDER: That is so.

BRENNAN J: It simply adopts a blanket classification.

MS LIEDER: Yes.

BRENNAN J: There is one problem that is puzzling me, if I might say so. How does this practically arise? I mean, in the course of the trial, if evidence is admissible against an accused person from whoever, unless it is original evidence, it would ordinarily be evidence, the giver of which would be identifiable by the accused, if it were true.

MS LIEDER: Precisely, yes.

BRENNAN J: If it were not true, then one suspects that a large proportion of the class that is covered by this would be accomplices, who might be accused of giving false evidence and whose evidence would require corroboration. What is the scope practically of this rule?

MS LIEDER: The scope, we would say, is an enormous one. It extends to persons who were not known to the accused longer than, say, the term of their criminal involvement or non-criminal involvement in the case of undercover operatives. Persons who might have reasons for wishing to inculpate the accused; persons who might, for reasons of their own, have an agenda of their own, such as, for example, the very common allegations that are made, and very often with great success, as to a conspiracy theory floated by many accused in respect, for example, of the desire of investigative authorities for reasons of their own to have a particular form of grudge against the accused.

Now, it is precisely that aspect of evidence, which has becoming unfortunately more and more common in the presentation of criminal trials in Australia, which cannot be challenged effectively by an accused person in the absence of knowledge by the accused of the identity of that person. So that for arguments sake, let us say, in a trial where a person is accused - it is far removed with this trial - of an offence and where his defence or her defence may well be, "The particular investigative authorities with whom I had dealings, unbeknowance to me that they were in fact investigative, I believe are lying, and I say that they are lying, and one of the things that will assist me in the conduct of my defence is if I am able to demonstrate that those particular persons, by reason of their previous involvement in matters touching, for example, upon my community, had reason to have a grudge against me", that is the sort of matter that cannot be tested in the absence of knowledge of the identity of the persons giving evidence.

So it is a development perhaps; in criminal trials in Australia, as they become more and more complex, so in fact do the defences. So the scope extends well beyond undercover police operatives. Indeed, as His Honour Mr Justice Brooking pointed out, it extends to witnesses, if this is to be accepted, who are in fear. Witnesses who say they are in fear may in fact be accomplices. True it is that they would be known to the accused person in the sense of being known for that period of time, but the ability of the accused to test the credit of that accomplice may very often depend upon an ability to investigate the background of that accomplice in a satisfactory form.

Most accomplices when they give evidence against an accused might very well wish to have their identity concealed or could say, and with some force, "I am in fear". But that balancing exercise that is very often talked about will be precisely the sort of issue that cannot be dealt with if the identity of the accomplice is not known. The accused has dealt with the accomplice under a certain nomenclature, but it would be vital for the accused to discover what is the motivation, what is the background - - -

MASON CJ: I think this is repetitive really, Ms Lieder.

MS LIEDER: Yes. That is the issue. Your Honour was asking me what is the scope of it, and I can say in summary that the scope of it is enormous because of the extension into the two categories.

If I might take Your Honours back to page 31 of the judgment of His Honour Mr Justice Beach referring to His Honour Mr Justice Stewart. At line 20 His Honour Mr Justice Stewart said:

`... when the credibility of a witness is in issue, the very starting point in "exposing falsehood and bringing out the truth" through cross-examination must necessarily be to ask the witness who he is and where he lives.

MASON CJ: I think we follow all that.

MS LIEDER: Yes, I am sure Your Honours do. I take that point up, Your Honours, in relation to the point that I made earlier and it also does relate to the point raised by Your Honour Justice Brennan. It would be our submission that there is a fundamental point of importance here, as is conceded by the Crown. The respondent Crown concede in the first paragraph to their submissions that the issue of -

whether a court hearing a criminal matter has jurisdiction to permit a witness to give evidence without disclosing his or her true identity -

does raise a question of public importance. That, in our submission, is sufficient to overcome the initial hurdle that we must overcome which is that it stands at an interlocutory stage and does justify us coming before this Court to ask for that fundamental question to be decided. That does not denigrate, in our submission, from Your Honour Justice Dawson's point that the fundamental right is that to a fair trial. By that concession, we say the respondent in fact concedes that that is a question which is central to that issue. If Your Honours please.

MASON CJ: Thank you. Yes, Mr Bongiorno; what do you say about this?

MR BONGIORNO: If the Court pleases. The decision of the Full Court in this case, Your Honours, is merely that a magistrate has a jurisdiction to do something in certain circumstances. In this instance the magistrate has not yet sought to exercise that jurisdiction. It is not known whether he will order that the witnesses be permitted to give evidence under pseudonyms or not. In the event that he does order that they be permitted to give evidence under pseudonyms and the accused are committed for trial and an indictment is preferred or presentment is made in the superior court, the superior court judge in the County Court or the Supreme Court will then have jurisdiction to determine on an application by the accused to stay for want of a fair trial on the basis that no proper committal was granted in the terms of this Court in Barton's case to effectively sit on appeal from the magistrate, so that the first point at which the magistrate's decision could be considered is at the trial court.

If the trial judge, who will presumably have a similar application made to him, assuming that he does not stay the trial for want of a proper committal and the trial proceeds, the trial judge would then have to determine for himself, in the exercise of the same jurisdiction which the Full Court has declared that a court has, whether again those witnesses should be permitted to give evidence anonymously. He may come to the same conclusion and again assume against the accused that he permits the trial to proceed with those witnesses' identities being concealed.

The question then in the Court of Criminal Appeal will be whether the accused had a fair trial, the same question essentially again. There one assumes the accused could argue both that they did not have a proper committal and they did not have a proper trial for the same error committed by the judicial officer in each case. So that the possibility of remedy at that point is there.

In the event that the Court of Criminal Appeal upheld both the magistrate and the trial judge, in effect, then an application for special leave to this Court could be brought at least on the grounds presently sought to challenge the present ruling of the Full Court and possibly also, perhaps with less chance of success, on the basis of a miscarriage of discretion.

MASON CJ: How long will the committal take? How long will the expected trial, if it eventuates, take?

MR BONGIORNO: The committal will take one more day, Your Honour, I understand, or two days. The trial, about two months, I am told, in terms of length.

BRENNAN J: Mr Bongiorno, what do you say the function of the judge or a magistrate is? What does he ask himself or herself?

MR BONGIORNO: The question posed is whether sufficient facts have been put forward to raise the public interest immunity such that that immunity counterbalances - more than counterbalances - the ordinary right of the accused to know the identity of witnesses called against him.

BRENNAN J: All that seems to me to be a very curious question. Many of the cases to which these remarks of the Full Court are directed would be cases where the accused would wish to identify the witness against the accused as an accomplice; is that not right?

MR BONGIORNO: That could be so, Your Honour, yes.

BRENNAN J: It is likely to be in many cases, and yet they cannot do it without knowing who the person is unless they give evidence to say, "When I was engaged in the criminal activity, this person was the one who was engaged with me". How else does a witness get cross-examined to establish their status as an accomplice if you do not know their identity?

MR BONGIORNO: Well, it would depend on the facts of the individual case, Your Honour, but certainly, taking the facts of this present case, the cross-examination would not be dependent, in our submission, on the identity of the witness at all but on the fact that the person in the witness-box is the person with whom the accused had the relevant conversations, and that those conversations were not in the sense conversations - that they were a mutual conspiracy type conversation.

BRENNAN J: If they are the ones that they have the conversation with, the accused either knows that they had a conversation with that person, in which case the secrecy of the identity is blown or, alternatively, he says he never had such a conversation, "and this person is a liar". Which way does it work? He either cannot establish that he is a liar and he never had a conversation with him because he cannot identify who he is, or the cover is blown anyhow.

MR BONGIORNO: But, Your Honour, in the circumstances of this case the Crown case is that the identity of the operative in the witness-box - he is using the same pseudonym that the Crown case says he used when dealing with the accused. So that the accused can cross-examine him only to the extent of saying, "You were in this with me. You, Manny" - I think is one of the names that is used - "were in this with me". It does not matter in that circumstance whether it is Manny or he has got any other name, Fred Smith or whatever. The allegation of complicity cannot be dependent on the - - -

BRENNAN J: Is this ruling related to cases where the assumed identity of the undercover agent is always to be known to the accused?

MR BONGIORNO: No, it is not in its terms limited to that, but that is the fact situation in the way the Crown puts the case here. But, in our submission, Your Honour, the points Your Honour is raising are the matters that would go directly to the way in which and the question as to whether the magistrate or presiding judicial officer, whoever he or she was, would exercise the discretion. So that if an argument such as that which Your Honour is now putting could be put, then that would be, one would have thought, an extremely strong argument for not exercising the discretion in terms of anonymity. It must be remembered, in our submission, that all the Full Court has said is that the magistrate has the jurisdiction to consider the matter, and that is why our principal submission is that this application is premature because at this stage there is no right of the accused in this case which has been in any way infringed by any order of any court.

All that has occurred is that the Full Court has said the magistrate has jurisdiction to consider a number of matters, some of which are probably already before him, some of which may be before him when he sits again, to determine the question of whether he ought to order disclosure. If he refuses the Crown's application to permit the witnesses to give evidence anonymously, then, subject to any theoretical right the Crown might have to review that decision and subject to all the arguments about interlocutory appeals in criminal matters, the Crown will call the witness and the witnesses will give their identity, at least as I am presently instructed. There is no reason to believe that they will not. So that the accused will have lost nothing.

On the other hand, as I have outlined, if in fact an order for anonymity is made, then, as Justice Dawson has suggested to our learned friends, the question of the fairness of the trial will be in issue in the Court of Criminal Appeal and perhaps even in this Court subsequently, but that point would require a number of adverse rulings against the accused between now and that point in different tribunals before we could ever get to that question. It may be that this Full Court ruling will be examined by judicial officers in this State and elsewhere and jurisdiction exercised, questions raised. It may be that no judicial officer will rule that it is appropriate in any particular case that police operatives give their evidence anonymously.

It may be that when one balances the various factors, not all of which are before this Court in this case, that no judicial officer will exercise the discretion, having regard to the necessity to ensure that there is a fair committal proceeding and subsequently, if it goes that far, a fair trial. So that it just may never get to that and the two accused in this case will lose nothing by having that matter tested firstly before the magistrate and then subsequently. They have even got a right of appeal in this instance that an accused would not normally have, because they have a de facto right of appeal in the trial judge who might rule - if he were to rule against anonymity, he might say, "Not only am I ruling against anonymity, but the magistrate was wrong and you were therefore deprived of proper committal and I'll make an appropriate order that you be given a proper committal before this presentment is allowed to be tried". So that in effect there is a summary appeal procedure in this instance because of the peculiar nature of the ruling, peculiar nature of the procedural ruling which is involved. There is a summary appeal procedure available to the accused which might dispose of it at the second stage, even if not at the first. Accordingly, in our submission, it is not an appropriate vehicle at this stage for the grant of special leave.

In reply to our learned friend's assertion that the Crown has disrupted the criminal process, we would say that the Crown did the only thing it could do to preserve the res. If in fact the Crown had gone along with the magistrate's ruling and decided to prosecute these people for incitement to murder as it would have, the subject-matter of the litigation would have been destroyed at the first hearing because the identity of the witnesses would have then been disclosed. So that the reason for the Crown taking the unusual step of issuing proceedings to review the magistrate was because of the peculiar nature of this case and the fact that the res itself, the thing being litigated about, would itself be destroyed if the case had gone any further. So there is quite a clear justification for what would be an otherwise inappropriate interruption to the criminal process.

But once the Full Court has ruled the way it has, the argument on the other side is not reciprocal because the accused are not placed in the position of having any rights affected at this stage, and indeed may never have any rights affected at all. So that it borders on being an advisory opinion in one sense from their point of view. There is no factual basis for the court to do anything other than entertain a legal argument as to whether in the abstract there is a jurisdiction in a criminal court to hear evidence anonymously or evidence without disclosing identity is the way it is put. Accordingly, in our submission, it is inappropriate.

The Crown does not contend that this is not a serious issue. It concedes that, but it says that it is not raised in this case. The delay which would now be caused, in particular - my learned friend has not raised this, but one of the applicants is in custody, bail having been refused, and the Crown's position is that bail will continue to be refused in his case. So that there is that overriding consideration as well, that the sooner these criminal proceedings are completed, the better in the public interest, in our submission. It is in the public interest certainly that he not remain in custody without trial a day longer than is absolutely necessary.

That is in summary the argument for the Crown, Your Honours, and I do not think there is anything further that I can assist the Court with.

MASON CJ: Thank you, Mr Bongiorno. Mr Merkel.

MR MERKEL: We would just submit in reply that my learned friend's case blows hot and cold. He overcame interlocutory hurdles below because, as was said by Mr Justice Beach at line 28, page 28, this is not a problem just for this case; this is a problem for the administration of justice generally because there are many cases where this will arise and that is already occurring in the system. He then gets his judgment in the Full Court and then says, "Now, this is just to be dealt with within the confines of this case", and puts a totally unrealistic proposal that the matter go to a two-month trial before a judge who is bound by the Full Court, then it can go to the Full Court which will follow its own decision.

Then it will only be when it comes back to this Court that this issue can be agitated under a test which really does raise, with the greatest of respect, the very issue Your Honour Justice Brennan put to my learned friend, the test at page 50, line 30, with His Honour's transference of the informer principles makes it incumbent that the onus is on the accused to show there is good reason that disclosure will assist "the defendant in answering the case". We say that is the principle that is operative in Victoria hereafter in respect of committals and trials until this matter can get to this Court and be dealt with on a proper basis. We say the error that infected His Honour's reasoning in transferring the informer principle is one that will be perpetuated in this case until this Court can deal with the matter.

We say in those circumstances it is the administration of justice that warrants the dealing of this important issue. My learned friend's submissions totally overlook the conflict now arising directly between appellate courts in two States which must, as a matter of practical reality, be resolved, the earlier the better, given the day to day situation that this will occur in. His Honour has created categories of immunity not hitherto known and we say that is a matter that should be resolved in this Court, particularly given the heavy weight of judicial authority against the approach that was undertaken in the Full Court. So, for those reasons, we would submit that it is appropriate that leave be granted in the present case.

MASON CJ: Thank you, Mr Merkel. Ms Lieder.

MS LIEDER: Your Honours, we respectfully adopt the matters urged upon this Court by our learned friend, Mr Merkel. There is nothing particular that we seek to add in reply. If the Court pleases.

MASON CJ: Thank you. The Court will take a short adjournment to consider the matter.

AT 3.10 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.12 PM:

MASON CJ: What I am about to say represents the view of a majority of the Court.

The Court has repeatedly stated that it is only in exceptional circumstances that special leave to appeal will be granted in interlocutory proceedings in criminal matters leading to a fragmentation of the criminal process. We are not persuaded that the circumstances disclosed by these applications are so exceptional as to warrant the grant of special leave to appeal at this stage in the absence of knowledge of the contextual circumstances which would be provided by a continuation of the criminal process. The applications are therefore refused.

MR BONGIORNO: If the Court pleases, I would seek

costs in both applications.

MR MERKEL: I think Your Honours, in the Full Court, no order was sought by the Director on the question of costs or an order of costs was not made and we would say it would be appropriate, likewise, in the present case ought not to be made.

MASON CJ: My understanding of what this Court has done in the past is not to order costs in interlocutory proceedings in criminal matters and, on that footing, the application for costs is refused.

MR BONGIORNO: If the Court pleases.

MR MERKEL: If the Court pleases.

AT 3.14 PM THE MATTER WAS ADJOURNED SINE DIE