Chief Commissioner of Police v Crupi & Anor [2024] HCATrans 55 (20 August 2024)

Last Updated: 21 August 2024

[2024] HCATrans 055

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M83 of 2023

B e t w e e n -

CHIEF COMMISSIONER OF POLICE

Applicant

and

VINCENZO CRUPI

First Respondent

DIRECTOR OF PUBLIC PROSECUTIONS

Second Respondent

Application for special leave to appeal

GAGELER CJ
EDELMAN J
BEECH‑JONES J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE BY VIDEO CONNECTION

ON TUESDAY, 20 AUGUST 2024, AT 11.14 AM

Copyright in the High Court of Australia
GAGELER CJ: In accordance with the protocol for remote hearings, I will announce the appearances for the parties.

MS S.J. MAHARAJ, KC appears with MR C.J. TRAN for the applicant. (instructed by Victorian Government Solicitor’s Office)

MR D.A. DANN, KC appears with MR L.Z. RICHTER for the first respondent. (instructed by Stary Norton Halphen)

MR C.T. CARR, SC appears with MS H.L. CANHAM as amici curiae.

GAGELER CJ: I note that there is a submitting appearance filed by the second respondent. I should say for the record, before the hearing begins, that this is an application for special leave to appeal in which the underlying dispute between the parties concerns a claim for public interest immunity.

The parties and the amici curiae have been directed that this hearing will be restricted to ground 1 of the application, which is concerned only with the adequacy of the primary judge’s reasons. They have been directed that they should be prepared to argue the full merits of that ground as if on appeal. All participants in the hearing have also been provided with an index to the bundle of material from which the Court will be working. There are suppression orders covering much of that material, but this is an open hearing and counsel are expected to tailor their submissions appropriately. Ms Maharaj.

MS MAHARAJ: Your Honours, we structure our oral submissions thus: first, we address the potential vices that can result from adoption of one party’s submissions in the reasons without any real consideration of the opposing party’s submissions; second, we address why the Chief Commissioner submits the present reasons are inadequate; third, we address the well‑established principles and authority relevant in the present context that sets standards for, and the content of, judicial reasons and how the present reasons are inadequate and fail to meet these minimum standards.

We simply note that we do not make an ambit claim for adopting or preferring the submissions of one party in its reasons necessarily fall short of the judicial duty to give reasons. To suggest otherwise would be contrary to an intermediate appellate court authority, including James v Surf Road Nominees Pty Ltd [2004] NSWCA 475 at paragraphs 168 to 169 and Amaca Pty Ltd v Werfel (2020) 138 SASR 295 at paragraphs 19, 29 and 31.

That said, an option of one party’s submissions as the judge’s own reasons has its own potential vices. When pending, that adoption runs a risk that any deficiency of the submissions or failure in dealing with an opponent’s arguments of significant contested issues may become, by reason of that adoption, a deficiency in the judge’s reasons. Further, if a judge adopts one party’s submissions in their entirety whilst totally ignoring the submissions of the other side, apart from a general reference to their submissions, without giving reasons for the choice on each of the significant contested issues, then reasons will be inadequate. This flows from Li v A‑G (NSW) [2019] NSWCA 95; (2019) 99 NSWLR 630, paragraphs 45 to 47 and 54.

Adoption also leads to defective reasons, where it can be concluded that the judge did not actually turn their mind to the issues in contest, and this flows from Cojocaru v British Columbia Women’s Hospital and Health Care (2013) 2 SCR 357 at 35 to 40. This vice will in turn lead to a conclusion that the decision‑maker has constructively failed to exercise their jurisdiction.

The present reasons are inadequate for the following specific reasons, and the reasons are summarised at tab 20, page 277 of the court book and the applicant’s further submissions at paragraphs 9 to 19. There is nothing in the reasons to indicate that the trial judge brought an independent mind to bear on the two essential steps that need to be addressed when determining a public interest immunity claim.

First, whether there was good reason to think the disclosure of withheld material made the right substantial assistance to the accused. This test is noted in the Victorian Court of Appeal judgment in Madafferi v The Queen [2021] VSCA 1; (2021) 287 A Crim R 380 at paragraphs 42 and 101, and at tab 20, page 277 of the book, applicant’s further submissions at paragraph 10. Second, why the balance favoured disclosure, and this requirement is noted in Madafferi at paragraph 43.

We now address why the reasons are inadequate regarding the second step. That is, the balancing exercise given; this is a short point. There is nothing in the reasons to indicate: first, why the public interest in disclosure outweighed the public interest in non‑disclosure; second, how did the learned trial judge balance the interest in one disclosure – that is, the “very grave”, to use the Court of Appeal’s words, uncontested risks and the need to protect informers – with the public interest in disclosure; third, why precisely did disclosure have to prevail over the interests against disclosure?

The amici say their submissions contend – and this is at tab 21, paragraph 10, at page 288 of the court book – that the applicant made a concession that a positive finding of substantial assistance was determinative of or disposed of the balancing exercise. This is not correct, no such concession was made; we refer to tab 20, at court book page 277, applicant’s further submissions at paragraph 11; and tab 23, page 296, which is the applicant’s reply, at 5 and 6; and also the transcript below, at SAM1, behind tab 24, and the references to transcript of hearing noted in footnote 2.

Such a concession would not only have been contrary to the terms of section 130(1), which requires a balanced exercise to be conducted, and the extent Victorian authority, which is Madafferi at paragraph 40, but would have been surprising when balancing was a critical issue with a life at stake. The grave risks facing the human source were spelt out clearly and were uncontested by the amici.

Neither the applicant nor the amici suggested that the likelihood of substantial assistance necessarily meant that the balance must be struct in favour of disclosure. The amici’s written submissions were in qualified terms only. Tab 13, which is the amended special leave application, at paragraph 47, collects all the references to the amici’s submissions on this subject. To illustrate, your Honours, the amici submitted at tab 24, SAM3, at paragraph 9(a) that:

In light of the issues in the trial, this may well be one of those rare cases in which a claim of PII over the identity of a police informer should not be upheld.

Later the amici submitted that this case might be thought to be:

close to the margins.

SAM1, transcript page 8, line 4:

Ultimately, the amici submit that, with such weighty matters on both sides of the scales, it is open to conclude that a fair trial requires disclosure of significant parts of the HS2 material.

Tab 24, SAM3, at paragraph 46. It may be the concession in terms alleged by the applicant on this critical balancing issue, especially given the stakes, one would expect it to be noted in the reasons. There is no such notation. The judge’s reasons fail to explain why the balance was struck in favour of disclosure, given the issues in contest and the submissions made by the applicant.

We now turn to the first step, your Honours. That is, why the judge’s finding that the withheld material was likely to of substantial assistance in turn required his Honour in the circumstances of this case to resolve at least the following five significant issues which are clearly in contest between the applicant and the amici. The first question: whether the contention of the applicant that the essential substance of all the information sourced from the human source had been disclosed already, whether one single exception in the withheld material was correct or not. For your Honours’ information, the single exception is noted in the amended special leave application, tab 13 at page 81, at paragraph 65, and the applicant’s reply at tab 18, paragraph 11, at page 255 of the court book.

Section 130(5)(e) prescribes this mandatory consideration in the long, exhaustive list. That is, consideration of the extent of the disclosure that has been made to be taken into account. A critical issue at contest between the trial adjourned before the trial judge was the extent to which the withheld documents pertaining to the human source would be of assistance to the accused defence, given the extensive disclosure of the essential substance of all withheld material, with the single exception which we have identified.

The Chief Commissioner then joined issue with the amici in a written reply at SAM4. Which reply was accompanied by a table, Annexure B, which contained pinpoint references to disclosed Form 32 materials. Annexure B compared the substance of the disclosed material with the substance of the withheld material; tab 24, SAM4, at paragraphs . . . . . to 46.

SAM2 notes, at 7, that confidential Morse affidavit in several paragraphs also address the extensive disclosure of the substance of the withheld material already effected and the basis on which this contention was made. It was submitted by the Chief Commissioner that the key pieces of information captured in the withheld material had been disclosed to the accused in other disclosed documents; tab 13, amended special leave application, at paragraph 38(a), and also paragraphs 55 to 65 list the topics on which the disclosure had been made.

The amici in their response at tab 17, court book page 242, paragraphs 29 to 38 refer to two topics in order to demonstrate the forensic utility of the withheld material. The Chief Commissioner’s reply at tab 18 points out, at paragraphs 1 to 14, the amici’s stance ignores: first, the inherent limitations of the withheld material; second, the extensive disclosure already made; third, overstates the forensic utility of the withheld material.

The second question not addressed in the reasons is whether the contention of the applicant that the evidentiary status of the single withheld exception was no higher than rumour and gossip continuing pre‑ and post‑16 March 2016, which was similar in vein to other rumours circulating in the disclosed material, was correct or not. The applicant pointed out the inherent difficulties of all information sourced from the human source and it was generally rumour‑based and/or hearsay, including the single exception; see tab 18, applicant’s reply, at 13 and 14.

The applicant, on the other hand, labelled all the withheld material as “exceptionally valuable”; see amici’s submissions, at paragraph 32 at tab 24, SAM3. The amici also label some of the withheld information as:

‘forensic dynamite’ for the accused in defending his trial.

Paragraph 39, SAM3, at tab 24. The third question which we respectfully submit the trial judge had to address was in what ways did the trial judge contemplate the withheld material being of forensic utility to the accused. We refer to tab 20, applicant’s further submissions, at paragraphs 15 and 16. The amici contend, again, that the applicant conceded multiple or all of the amici’s potential uses of the withheld material and the work to be attributed to it; tab 21, court book page 286, amici’s further submissions in paragraphs 4 and 5.

Again, no such concession was made. Nor was such a concession recorded in the reasons on such a critical issue. One would expect to find such a recording if it had been made. The amici propounded different forensic uses by the accused of the withheld material – tab 21, amici’s further submissions, at paragraph 2 – and the applicant contested all of them; tab 24, SAM4 at paragraphs 38 to 46.

On the potential uses, the reasons failed to address which potential uses did the judge accept. Second, did the judge give some type or types of alleged use more weight than the others? Also absent from the reasons is any explanation of the basis on which the judge concluded that the material was likely to be of substantial assistance when the amici had submitted only that there is good reason to consider that the material “may provide substantial assistance to the accused”.

The amici in their response at tab 17, court book page 242, at paragraph 25, draw attention to the fact that the trial judge went beyond their submissions in concluding thus. They refer to their submissions below, at tab 24, SAM3 at paragraph 9(a) and paragraphs 32 to 44. The applicant, on the other hand, admitted that withheld material could be of some assistance – this is SAM1, that is the transcript, page 9 line 6 – but queried whether it could be of “substantial assistance”; SAM1, transcript again, lines 1 to 18 at page 20. The applicant submitted that it would be only of “slight assistance”; SAM2 at paragraph 35.

The first question was why did the trial judge, in effect, order that each withheld document had to be destroyed, rather than only some of them? Especially given the applicant’s contention that the essential substance of all of the information sourced from the human source, bar one single exception, had been disclosed. On this issue, the applicants reply, SAM4, makes clear the following was filed below: HS material comprising approximately 581 pages; SAM4 at paragraph 5.3.

The court in its orders deferred to the amici on what constituted sufficient disclosure. Specifically, whether what the Chief Commissioner proposed to disclose, to use his Honours words, “would constitute sufficient disclosure to the accused”. The orders are at tab 3. The main point we make is that the judge – by order 2 made on 16 November – in effect, deferred to the amici on which documents had to be disclosed to constitute sufficient disclosure.

The process of regime is described by the amici, set in place by the judge’s orders, committed redactions to material not referred to in the amici’s written submissions before the trial judge, as the amici did not address each redaction of each of the withheld pages. The reasons fail to explain why, in effect, every page of the withheld documents had to be disclosed. When the amici did not address every page of the withheld documents in their submissions, the applicant, on the other hand, contended the substance of all information, bar one exception, had already been disclosed.

The fifth question that arises is whether the option of an alternative form of disclosure without disclosing the identity of the human source as suggested by the applicant was considered by the trial judge. The issue of whether alternative forms of disclosure of the subject matter without disclosure of the identity was a viable alternative was a live issue.

Alternative forms of disclosure was discussed at the following pinpoint references: Commissioner’s submissions in SAM1, the transcript, page 9 line 15, Commissioner suggested the “sensible middle ground”; page 23 lines 2 to 4, Commissioner said the way to disclose without identity being compromised was open, and he was open to it, see also page 23 line 20, page 24 line 6; page 61 line 28, the Chief Commissioner still pursued the “fallback position” and suggested that the amici reflect on the correct – that the amici’s suggestion did not reflect the correct facts, page 61 line 23; page 62 line 14, the Commissioner is still entertaining the disclosure of the exception “in a benign way” without disclosing the identity.

The amici on the other end, page 43 line 4 to line 28, effectively ruled out alternative forms of disclosure, see also page 24 line 18 to line 20. By adopting the submissions of the amici, the reasons failed to review why the amici’s arguments were accepted on each of the significant contested issues instead of the Commissioner’s. What is the judge’s process of reasoning on each significant contested issue, why the judge found the withheld documents were more useful than even the amici suggested? Further, there is nothing in the reasons to indicate the trial judge independently studied all or a sample of the withheld material and/or independently considered the court contention of the Commissioner that the substance of the withheld material had been disclosed.

The Chief Commissioner’s written submissions at SAM4, at page 409 of the court book, addressed in detail with an accompanying table in Annexure B, with pinpoint references to disclosed material, as to what had been disclosed and what had been withheld. Given the amici’s role, to use their own words, was to act:

as a contradictor, advancing the position that we assume the accused would advance –

This is at the transcript, SAM1 page 44 lines 13 to 14, the judge should have exercised some caution before uncritically adopting their submissions without even adverting to the Chief Commissioner’s submissions on each contested issue. The amici’s stance throughout has been absolute and uncompromising, requiring, in effect, disclosure of the withheld material that would compromise the identity of the human source. Finally, the legal principles dictating the content of judicial reasons are well‑established.

GAGELER CJ: Have you concluded your submissions, Ms Maharaj?

MS MAHARAJ: I had about 13 more seconds to go, your Honour.

GAGELER CJ: You should take that 13 seconds.

MS MAHARAJ: Thank you. Well‑settled in there, set out in the amended special leave application at paragraph 37, and the applicant’s further submissions at paragraphs 1 to 8. We emphasise the following principle given the present context. First courts often had to make decisions and deliver reasons in a timely and effective manner. That said, courts are not liberty to truncate the judicial obligation to give reasons to such an extent that the integrity of the judicial process is undermined. In this regard, the trial was not listed until 8 March 2023, with the decision made on the PII claim, and the extemporary reasons delivered on 16 November 2022; that is an excess of three months before the trial.

We draw to your Honours’ attentions, paragraph 85 in AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438, at page 467, where Justice Heydon stated that it is necessary for a judge in the reasons to:

summarise the crucial arguments of the parties, to formulate the issues for decision, to resolve any issues of law and fact which needed to be determined before the verdict could be arrived at, in the

course of that resolution to explain how competing arguments of the parties were to be dealt with and why the resolution arrived at was arrived at, to apply the law found to the facts –

The reasons fail to meet all these standards, and amici’s reliance on some counsel and Bench exchanges are not to the point, as exchanges with counsel are not a substitute for and do not form part of the judge’s reasons; this is AK v Western Australia at paragraph 16. In any event, a proper study of the exchanges in the proper context supports the Chief Commissioner’s intention. The high function judicial reason serves was described in Wainohu v NSW (2011) 243 CLR 181 by Justice Heydon at paragraph 58, that it is:

The provision of reasons for decision . . . is an essential incident of the judicial function . . . which is at the heart of the judicial function –

And in Commissioner for Railways for the State of Queensland v Peters (1991) 24 NSWLR 407 ‑ ‑ ‑

GAGELER CJ: Ms Maharaj, I think we have these references. Was there anything you wanted to add as to their application in this case?

MS MAHARAJ: The only addition we would make, your Honours, is to draw your attention to the inadequacies that caused the Court of Appeal below concerns, which their Honours stated remained unabated on two occasions.

Those are our submissions.

GAGELER CJ: Thank you. Mr Dann, are you in a position to respond now?

MR DANN: Yes, your Honour. I apologise for the technical difficulties. If your Honours can hear me, I am ‑ ‑ ‑

GAGELER CJ: Yes. Proceed, thank you.

MR DANN: Thank you. On behalf of the first respondent, Mr Crupi, it is submitted that if ever there was a criminal case where fragmentation is a major issue, this is the case. The alleged murder subject of the pending trial occurred in March 2016. Mr Crupi was interviewed on 18 March 2016. He was charged on 9 November 2018. He was then remanded in custody, spent the next two and a half years in jail, before being released on bail. He is currently on bail. He had a committal hearing and was committed to stand trial on 14 November 2019.

So, we are now approaching five years since he was committed for trial. As things stand, there is no trial date in sight. The reason there is no trial date in sight is because of these various procedures the Chief Commissioner has undertaken.

BEECH‑JONES J: Mr Dann, can I just ask – this is Justice Beech‑Jones. Is your client refused bail?

MR DANN: No, he was granted bail.

BEECH‑JONES J: He was granted bail. Thank you.

MR DANN: Yes. So, he is currently on bail. And the date of that was 18 March 2021.

BEECH‑JONES J: Thank you.

MR DANN: So, this is a case, in terms of delay between committal and trial, which we submit is simply unheard of. It is a delay that goes beyond the extraordinary; that is not an adequate description. In the period of that delay between committal and trial, we have seen Mr Crupi’s trial given a listing date on six separate occasions, only to have that listing date vacated on each of those six separate occasions, none of those being his fault.

The first occasion was 1 June 2020. It was related to COVID‑19 pandemic issues. The second listing of the trial, 11 October 2021, there was two reasons the trial could not proceed: one, COVID‑related issues; two, disclosure issues at the hands of the Chief Commissioner. The third listing, 12 July 2022, the reason the trial had to be vacated: disclosure issues on behalf of the Chief Commissioner, where it was said that more material had been located, but time needed to be taken to assess that material to see whether public interest immunity claims would be made. Then we have the fourth listing, 6 March 2023, and by that stage we have the section 302 application under the Criminal Procedure Act to reserve certain questions to the Court of Appeal. We have the next listing on 21 November 2023, and we have, at that stage, the High Court proceedings underway. The last listing, 4 April this year, again, because of these proceedings, the trial date had to be vacated.

Mr Crupi is a 75‑year‑old man. If convicted of this crime, he faces the prospect of spending the rest of his life in jail. So, when this Court in Elliott (1996) 185 CLR 250 spoke of the personal difficulties associated with fragmentation and delay in terms of the various stresses, it is our submission that this case very much has that feature, with that prospect hanging over this man’s head for such a long time – a horrendous situation.

Again, in Elliott, this Court identified that fragmentation and delay is likely to lead to the position whereby there is miscarriage of justice. The Court identified that there will be an impact on witnesses who are subject or part of the trial process. We say again that that feature is very much a feature of the first respondent’s trial and his situation. So, to think of the prospect of Mr Crupi giving evidence in his own trial, he is going to have to be giving evidence about his movements since 2016, conversations had in 2016, clothing worn at key dates in 2016, movements on the day of the alleged murder, clothing on the day of the alleged murder. So to for prosecution witnesses giving evidence as to identification stretching back to 2016; conversations, movements, clothing, description of vehicles. Again, when the Court in Elliott talked of the dimming of memories and the impact of memories, this case has all of those features.

To allow special leave in this case, it is our submission it would in fact set in train a period of even further delay. As we understand it, the Chief Commissioner seeks an order for remittal, remitting this matter back to the Supreme Court and Justice Beale. There is a suggestion that there is some prospect that in addressing if this is to occur – if he has to address the adequacy of the reasons and provide further reasons, there is some prospect he would come to different conclusions. We say that that prospect is entirely remote. Justice Beale, of course, originally refused the section 302 application back on 15 September 2022. One of the questions posed at that stage was that he had not engaged properly with the balancing exercise. He rejected that question and said that the whole complaint was misconceived. He gave detailed reasons at that time why he came to that view. Of course, if in that process there was a different conclusion reached, Mr Crupi would then have the availability of an interlocutory appeal.

What is entirely predictable, in our submission, if special leave is granted and the ultimate order sought by the Chief Commissioner is granted, the matter is remitted to the Supreme Court – what is, we say, highly predictable is that what will happen is, again, the Chief Commissioner will pursue a challenge to the ultimate conclusion reached by Justice Beale. We say the Chief Commissioner, by way of submission, by way of the history of this matter, has already attempted to do that on five different occasions.

So, on the original 302 application, that was one of the original questions posed; whether his Honour had involved himself in a proper engagement in the balancing test. They proceeded with that question to the Court of Appeal. In the first time, the matter was listed in the Court of Appeal. The Court of Appeal on 2 February 2023 found that that question, as it was posed, and another were defective. The Chief Commissioner sought time to reformulate the questions. They did so, and the court reconvened on 13 February 2023. It was found that that process that the Chief Commissioner had entered into was defective again, because there was no power for the Court of Appeal to deal with reformulated questions in that way. And the reformulated questions involved, again, this challenge, by way of one of the questions, to the ultimate conclusion as to the balancing exercise.

Then, on 15 February, the Chief Commissioner filed a fresh 302 application. Again, by one of the questions – this time framed along the lines of, was it open for his Honour to reach that ultimate conclusion – challenged the conclusion to the balancing test. On 13 October, the Court of Appeal found that that question was defective in the sense that it did not give rise to a question of law. On 31 October, this Court – your Honours will be aware that in the original application for special leave, ground two involves another challenge to the balancing test to the conclusion that his Honour had come to. Even on 9 April, when the amended application was filed, again we have ground 2, which again challenged by way of suggested error that ultimate conclusion.

So, with our history, it is submitted that it is inevitable that what train of events is likely to occur is that, if remitted to the Supreme Court, the original decision or ultimate conclusion will stand, the Chief Commissioner will challenge that ultimate conclusion, and will have to do so to this honourable Court, the High Court, which will occasion even more delay. It will mean that Mr Crupi is looking at a trial over six years from the time that he was committed for trial; it will mean that it will be over nine years since the alleged murder; it will mean that all of those impacts on the process, all of the risks to the trial process, will be increased.

Now, when the Chief Commissioner in written submissions talks of the “reality of this situation” being that this:

prosecution may be discontinued (so concerns about fragmentation vanish entirely) –

we submit that we are a long, long way from that position, because, as I have just taken the Court to, before we can even get to that position the inevitable likelihood is that the challenge will be balanced on that ultimate conclusion.

Secondly, whilst the Chief Commissioner may have that thought in mind, that rather than have to disclose the material, discontinuance should occur, the ultimate decision as to discontinuance does not lie with the Chief Commissioner but lies with the Director. It is not as if we have the Director as part of these proceedings embracing that proposition as to discontinuance. It might be different in that situation, but we just do not have that here.

Given all of those circumstances, it is submitted that further fragmentation, further delay, further erosion into the trial process, further potential for miscarriage of justice, all of that just cannot be justified by this issue that is raised as to the adequacy of the reasons; an issue which the Chief Commissioner accepts does not give rise to a point of principle, an issue that the Chief Commissioner could have pursued directly with the learned trial judge at the relevant time.

Next, whereas originally the Chief Commissioner submitted that one of the reasons for granting special leave was that the statutory scheme in Victoria did not allow a non‑party to appeal against an interlocutory decision as to public interest immunity, it is our submission that is not a reason for granting special leave, that is the reason for refusing special leave, because the statutory regime is consistent with all of those principles dealing with fragmentation, and the interlocutory appeal scheme in Victoria is tightly geared around those principles of fragmentation and avoiding fragmentation.

As to the adequacy of the reasons, your Honours, you will appreciate that on behalf of Mr Crupi we were not and could not be part of the oral hearing where competing submissions seemingly were made about the information in question, the information already disclosed, the comparison between the two. Again, my learned friend has made submissions about that this morning. Now, we are not in the position to take up that argument, because we do not know what the material is and we do not necessarily complain about that as part of this hearing – I was just pointing out to you that when we speak of the adequacy of the reasons by way of submissions, we are reduced to general principles, general submissions, because of our position.

What we say about adequacy of the reasons is this: that, of course, reasons and the adequacy of the reasons will depend on the special facts of the specific case, and each case will be different. What will be adequate in one case will not be adequate in another. Here, there was no factual dispute to resolve. The position as to HS – as HS has been referred to in the submissions of the Chief Commissioner – the learned trial judge accepted that position, accepted that disclosure would mean that HS would be in grave danger.

There was no legal issue to be resolved. It came down to an evaluative exercise in a special context, the context being that the case was brought on quickly, his Honour obviously concerned that, at that time, three trial dates had already been vacated for various reasons – two of which
involved disclosure issues, and a fourth which now involved public interest immunity issues. The hearing came on at a time when his Honour was involved in another murder trial. He had the benefit of written submissions, which he specifically commented on; he had the benefit of oral submissions, which he specifically commented on in his reasons; he commended the Chief Commissioner as to the detail of the written submissions, the quality of the oral submissions of the Chief Commission and on behalf of the Chief Commissioner.

So, it is not a case where it can be said that those submissions were just ignored, passed over; it is not a case where the Chief Commissioner was left in the dark about the basis for the final conclusion; it is not a case where his Honour talked about preferring one set of submissions to the other. He accepted the submissions of the amici as to his assistance that this information – evidence – would provide an accused man in a murder trial, where he is looking at spending the rest of his life in jail if convicted. It is not a case where his Honour, through the reasons, could be seen not to bring an independent mind to the process. Indeed, he went further than the submissions of the amici when he reached the conclusion that the material was likely to be of substantial assistance.

As his Honour identified subsequently, the way the case had been conducted before him, there was no dispute if he reached that finding that that the material was likely to be of substantial assistance. The balancing exercise had to favour disclosure. There was no dispute about that. There is nothing to be resolved about that, given the submissions that have been made before him. So, in that way, as again he subsequently explained, his reasons could be relatively brief. He was involved in an evaluative balancing process, and he gave expression to that in those reasons.

On the basis of those submissions as to the adequacy of the reasons and – most significantly in this case – the submissions as to fragmentation, it is our respectful submission that in all of those circumstances, special leave should not be granted.

If the Court pleases.

GAGELER CJ: Thank you, Mr Dann. Mr Carr.

MR CARR: Can we start with three – what we anticipate to be – trite propositions about judicial reasons. The ultimate purpose of such reasons is to explain how the dispute before the court has been quelled. So, judicial reasons need only respond to the matters which are in issue and the way in which the case was conducted.

EDELMAN J: Mr Carr, just as a little bit of background to how the case was conducted. The best practice usually in cases involving privilege or immunity claims, where there are opposing parties – including an amicus – that have all the material, would usually be for the parties that have all the material to sit down, to discuss exactly what all the objections are, to prepare a schedule of each category of document to which particular objections are brought, and then to present the judge with one or two documents or – even better – extracts from those documents, where it said, for example, that this is what the importance of the evidence is – or the potential importance to the accused, this is what is said to have been disclosed already, this is what is said to be the consequences of the disclosure, can we have your ruling on that particular passage or this particular passage, and then have those rulings as representative of a category of documents. Now, it does not appear that that type of process occurred in this case. Is that right?

MR CARR: That did not take place. The reason that did not take place is that the claim by the Chief Commissioner was a claim that none of this material should be disclosed. That is explicitly a claim over the whole of the material. It was sought to be heard without the knowledge of the accused, and ultimately we were asked to act as amici curiae, and ‑ ‑ ‑

EDELMAN J: Yes. But once the amici were appointed – and this is not being critical of any of the parties – was there any reason why either the judge could not have directed or the Commissioner and the amici, of their own volition, could not have sat down and said, well, although there is an objection to the whole of this material, the objection might have different force in relation to different passages or different documents, and here is a schedule of what the parties say in relation to each of these representative passages or documents?

MR CARR: That was, in essence, the outcome of this hearing. The Chief Commissioner’s claim that none of this material, none of the information, could be conveyed to the accused was rejected and a process which left open what was described in hearing as a Yucel (No 6) form of disclosure was ordered to follow. The conclusion was that the claim – that is, the Chief Commissioner’s claim that the whole of the material must be withheld – was rejected. So, that is what the conclusion was. Then the order provided for a process whereby the material would be produced in a form that accorded with what we had submitted would be of utility. Then there was an order for us to make submissions as to whether that would constitute sufficient disclosure.

It is important to understand, when the parties referred to what our learned friend, Ms Maharaj, described as “alternative forms of disclosure” in the hearing – I say “parties” to include us just for convenience, though obviously we were not – when we referred to that process by referring to the authority of Yucel (No 6), that was an authority that stood for two propositions: one, that a rejection of a PII claim could be reconsidered by the primary judge in light of additional material; two, it anticipated allowing an alternative form of disclosure in that case, propositioned by the PII proponent of certain agreed facts which were ultimately adopted by the parties.

BEECH‑JONES J: Mr Carr, can I ask you this: is it not abundantly clear from the submissions you filed, in the way it was put, that the one thing that the primary judge was accepting was that, whatever the scope of disclosure, it would be a disclosure that was capable of allowing the informer to be identified?

MR CARR: That was, we submitted, integral to adequate disclosure, such as to allow a fair trial to take place and ‑ ‑ ‑

BEECH‑JONES J: I understand that – I am sorry. Please continue. I should not have stopped you.

MR CARR: I am anxious to answer your Honour’s question. I was just going to say that the Chief Commissioner’s response was that under no circumstances could disclosure include that issue.

BEECH‑JONES J: And that was the fundamental debate, and that was resolved in Mr Crupi’s favour?

MR CARR: Yes.

BEECH‑JONES J: Right. And where do we find how the judge came to that conclusion as the result of the balancing exercise?

MR CARR: The answer to that lies necessarily in the way that the case was conducted before the primary judge. There was no dispute whatsoever about the facts, there was no dispute whatsoever about the applicable law, there was no dispute about the respective weights to be attributed to the public interests at stake. They were the subject of explicit submissions by the applicant and by us.

The applicant made submissions behind tab 24 of your Honours’ application books, down the bottom right‑hand side, in bold – the pagination is page 80. At paragraph 19, which was exempted from the suppression modified by your Honour Justice Beech‑Jones yesterday, the point was made by the Chief Commissioner:

The task before the Court requires balancing the competing public interest –

And so forth. In the immediately preceding sentence, the guidance as to how that exercise should be carried out and the respective weight was cited by the Chief Commissioner. We then made submissions identifying again the need to balance, and going forward in the pagination behind tab 24 to page 92, we identified the public interests in non‑disclosure at paragraph 19 and the public interest in disclosure at paragraph 20, observed at paragraph 21 that the balancing exercise had to be undertaken, and then, at paragraph 22, recited the authority that gave guidance to his Honour as to the likely outcome of a balancing of precisely the public interests at stake in the present case. And his Honour ‑ ‑ ‑

BEECH‑JONES J: To the extent they cite authority, can I ask this: do any of those authorities deal with a case where there is a serious risk of physical harm to an informer?

MR CARR: None of the – Jarvie was not an informant; Jarvie was an undercover police officer. As I recall, there was a safety risk in Jarvie; there was not in Madafferi; we have referred to Cain v Glass, I think there was there; and AB v CD, there certainly was. This Court might recall the facts of the safety risk in AB v CD. So, in terms of the balancing, those authorities themselves pick up on other authorities which incorporated that safety risk. So, the answer ‑ ‑ ‑

BEECH‑JONES J: Sorry, when you are talking, though, about a pending trial – and I do not think AB was a pending trial ‑ ‑ ‑

MR CARR: No.

BEECH‑JONES J: ‑ ‑ ‑ there is a question about stay, is there not?

MR CARR: Yes.

BEECH‑JONES J: And we do not know anything about that in this case, do we?

MR CARR: Well, the Director has pursued the charges, and whether there could be a stay or should be a stay, in light of the high threshold, has not been determined. It has not been . . . . . for determination.

BEECH‑JONES J: But that would be a matter for the primary judge. That is the point, is it not? The Chief Commissioner cannot talk about stays, it is not the Chief Commissioner’s prosecution. But in a case like this, where the question about balancing is being considered in the context of a credible risk of harm to the informer, it is not a question of the Director, it is a question of the primary judge weighing the various interests or outcomes. Is one of those not the possibility of at least temporary stay?

MR CARR: A temporary stay would not arise on these facts because the applicant makes clear that the risk arises and will continue indefinitely. So, it would not be a question of a temporary stay, it would be a question of a permanent stay. Yes, we accept there is the possibility of a stay being considered, and if there had been in the mind of the primary judge a need to balance the public interests in a way which led to non‑disclosure – rather, if it had been appropriate to balance the public interests in a way that led to non‑disclosure, then logically, that might well have led to a permanent stay because a fair trial could not be held. So long as the proper balancing of the relevant considerations was not to withhold this material, then the issue of the stay did not arise.

EDELMAN J: That would be very exceptional, though, would it not, for the judge to conclude that on the one hand, the balancing issue was one that did not favour disclosure – even taking the interests of the accused into account – and yet, on the other hand, even having concluded that, the interests of the accused necessarily required a permanent stay?

MR CARR: It would be most exceptional, and it would arise, one could anticipate, only in a scenario – not this case – on the evidence before the primary judge, only in a scenario where there was evidence that there was a risk to safety which could not be addressed. That is not this case. There was no evidence before the primary judge as to, for example, the operation of measures such as under the Witness Protection Act.

Such evidence, to return to that case of AB v CD, was present in a case like that, and one can well imagine that the balance in such a case might require non‑disclosure of the information and, as a corollary of the non‑disclosure and the inability to hold a fair trial, the permanent stay of proceedings. So, certainly, it would be – in answer to your Honour Justice Edelman’s question – an exceptional case. Not this case, on the evidence before the primary judge. And that is why it did not fall for consideration in the exercise before his Honour.

If I can just return to the answer to your Honour Justice Beech‑Jones’ question about where one finds the balancing, his Honour, having been referred to the well‑settled principles as to the weight to be attributed to the various public interests at stake – and I should add that in the reply before the primary judge, the Chief Commissioner explicitly adopted or accepted that principles were uncontentious, as we have stated them – the primary judge uses the language of “substantial assistance”, picking up by inference on the line of authority dealing with the need to balance and the respective weights to be given to those competing public interests, and says “therefore” in the beginning of the next paragraph, thereby necessarily, by inference, indicating how the balance has been struck. It is not ‑ ‑ ‑

EDELMAN J: But that balance – I think you accepted that that balance might be struck differently in relation to different redactions, different documents and so on, and the case was not presented to the primary judge on the basis of each individual document or redaction, or even on the basis of representative documents or redactions.

MR CARR: No. There are two points about that. One is the overarching point about the utility of this information that the submission that we made – which his Honour accepted – was to the affect that provision of this information would have the potential to reshape entirely the accused’s defence to this murder charge. Sorry, I have lost my train of thought. My apologies, your Honours. The Chief Commissioner was adamant that the means by which that might be done could not be achieved because the identity of the person could not be revealed.

As to whether particular information should or should not be provided, that matter fell for determination at a later stage once the overarching submission of the Chief Commissioner, that the entirety of the material must be withheld, was rejected. So, the issue that his Honour resolved was to reject the contention that nothing can go to the accused and to leave open for consideration the issue of what exactly needs ‑ ‑ ‑

EDELMAN J: Mr Carr, the order that was made on 16 November, that is a public document, I take it?

MR CARR: It is.

EDELMAN J: That order is not in the terms that you are just submitting, though – particularly order 1. Order 1 is that:

the Chief Commissioner . . . file with the Court and serve . . . a redacted version of the HS2 Material, with the redactions limited to the material not identified in the amici’s submissions as possibly being of substantial assistance –

MR CARR: And then, what is to follow involves ‑ ‑ ‑

EDELMAN J: Yes, but what is to follow is only in relation to the redacted material. These orders are only carving out from all of the material that part that is going to be redacted. All of the amici’s submissions described as “being of substantial assistance to the accused”, all of that is to be disclosed.

MR CARR: That is the starting point, but it is not that that was conclusive and unable to be varied, precisely because of the point that our learned friend Ms Maharaj made, that his Honour was open to what was described before the primary judge as a Yucel (No 6) solution – that is, an alternative form of disclosure. Implicitly knowing, as the parties before the primary judge did, that Yucel (No 6) stands for the proposition not only that there can be alternative forms of disclosure, but also that an interlocutory decision as to a PII claim is inherently able to be varied or changed or reversed, depending upon the changing of circumstances – one of the possible changing of circumstances being an alternative means of disclosure that allows for a fair trial to take place.

I am very conscious that ‑ ‑ ‑

GAGELER CJ: Yes, Mr Carr. Do you require more time?

MR CARR: I am certainly content to continue, if that would assist the Court, but I am conscious that my time has expired.

GAGELER CJ: You can take such further time as you think is necessary, Mr Carr.

MR CARR: Can we deal then, fairly briefly, with a number of specific points raised in oral argument by our learned friends. One which seemed to be put towards the forefront of their submissions is the contention that his Honour did not deal with the degree to which disclosure had already been provided. That issue was dealt with explicitly in our submissions, which his Honour addressed.

Still behind tab 24, at page 95 in paragraph 28, the primary judge had our summary of what had already been disclosed, and there is no difference of any moment in what the Chief Commissioner subsequently provided to the court. At paragraph 29 on page 97, we identified the limitations of that disclosure. So, there was no issue before the primary judge as to what had been disclosed. Argument started from the proposition that all of that material had been disclosed and one needed to look at the incremental benefit of further disclosure in order to determine how the balance should be struck.

The second issue that seemed to be put at the forefront of our learned friends’ submissions was the notion that adopting one party, or indeed, an amicus’ submissions leads to – and led, in this case – a risk of the judge not having brought an independent mind to the issue. The answer to that lies in
two things. One, if one is assessing whether a judge brought an independent mind to an issue, one should necessarily look to the oral argument, not be restricted to the face of the reasons themselves. It cannot be doubted, in light of the primary judge’s engagement in the course of argument, that his Honour brought an independent mind to the issues. Secondly, his Honour’s conclusion indicates an independent mind being brought to the issues because his Honour departed from our articulation of the degree to which the material might be of assistance, reaching an independent conclusion.

Insomuch as his Honour expresses his conclusion, it is necessarily to be inferred that his Honour accepted the submissions that we made, and there is no argument – not an argument of any substance advanced by the Chief Commissioner and maintained during the course of oral argument, when various submissions were abandoned by the Chief Commissioner or substantially modified – there is not an argument of substance that we had not anticipated and dealt with. So, there is no deficiency in his Honour having adopted our submissions as the rationale for his conclusion as to the importance of the material.

I have gone too far over time, and I thank your Honours for the indulgence of a little more time.

GAGELER CJ: Thank you, Mr Carr. Ms Maharaj, do you have anything in reply?

MS MAHARAJ: A very short reply, your Honours. This is in response to Justice Edelman’s question. The Chief Commissioner prepared a schedule in the form of Annexure B, and this was annexed to SAM4 – his submissions – which is at tab 24. This annexure is referred to in the submissions at paragraph 4.3, and the content of Annexure B is discussed in SAM4 at paragraphs 10 to 46. The documents that were withheld were compared to the documents that were disclosed, and the contents of the same. So, there was a schedule, but a schedule was only prepared by the Chief Commissioner.

The next point we make in response to Justice Edelman’s question is that if you look at the orders at tab 3, your Honours will see that there is no judicial identification in the reasons or in the orders of each of the documents that had to be disclosed, and in respect of which the privilege claim was rejected. Order 2, in fact, defers the task of deciding whether there was sufficient disclosure to the amici, and that is disconcerting. Absent from the reasons and the orders is any identification of which documents out of approximately 581 had to be disclosed or not disclosed, in the face of the Chief Commissioner’s schedule listing the topics, the documents that had been disclosed, and the documents that were withheld,
and the content of the same. That is a fundamental defect in the reasons and the orders that follow.

BEECH‑JONES J: Ms Maharaj, could I just understand those orders – is this the effect of them: your client was to hand over everything, but was entitled to redact the material that was not identified in the amici’s submissions of “being of substantial assistance to the accused”? Is that right?

MS MAHARAJ: Correct, your Honour. The Chief Commissioner in fact handed over all the documents that were the subject of the public interest immunity claim.

BEECH‑JONES J: And order 2 left it to the amici to identify whether those redactions did in fact accurately represent the material not identified in their submissions as assistance?

MS MAHARAJ: Correct, your Honour. The judicial task at the heart of the public interest immunity claim was left to the amici’s discretion.

BEECH‑JONES J: Okay. Thank you.

GAGELER CJ: Thank you, Ms Maharaj. Unless there is something you had further to say in reply?

MS MAHARAJ: No, your Honour.

GAGELER CJ: Yes. Thank you. The Court will consider its decision in this matter and will adjourn until 10.00 am on Tuesday, 3 September in Melbourne.

AT 12.29 PM THE MATTER WAS CONCLUDED