Re Michael Jerome Young, the Special Minister of State v Eris Adrian Quin; Tina Wong; David Young Te Chow; Charoen Rirasatik and Director of Public Prosecutions [1985] FCA 22; 1984 Evidence 4 FCR 483 (12 February 1985)

FEDERAL COURT OF AUSTRALIA

Re: MICHAEL JEROME YOUNG, THE SPECIAL MINISTER OF STATE
And: ERIS ADRIAN QUIN; TINA WONG; DAVID YOUNG TE CHOW; CHAROEN RIRASATIK and
DIRECTOR OF PUBLIC PROSECUTIONS
No. G376 of 1984
Evidence
4 FCR 483

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Bowen C.J.(1), Sheppard(2) and Beaumont(3) JJ.

CATCHWORDS

Administrative Law - Judicial review - committal proceedings in respect of alleged drug-related offences - attempt by counsel for accused to cross-examine prosecution police witness as to circumstances surrounding alleged offences - claim that such cross-examination would not be in public interest because answers might reveal police methods of operation to the prejudice of future police activities and of relationships with overseas police forces - decision by magistrate to allow cross-examination of deponent to affidavit in support of claim for immunity - desirability of intervention in committal proceedings - analysis of competing interests of public interest and proof of innocence - whether proposed cross-examination relevant to defence to charges.

Administrative Decisions (Judicial Review) Act 1977, s.5

Alister v. The Queen (1984) 58 A.L.J.R. 97 - con.

D. v. National Society for the Prevention of Cruelty to Children [1977] UKHL 1; (1978) A.C. 171 - con.

Evidence - Matters excluded from proof - Grounds of public policy - Oral evidence tending to reveal police methods of operation - Oral evidence tending to prejudice police relations with overseas police forces - Affidavit of police inspector in support of claim for immunity - Whether court should permit cross-examination of deponent. Held: (1) That when objection to the questioning of a witness in a criminal trial is taken on grounds relating to the protection of the public interest, and the objection is supported by an affidavit of a person with the appropriate authority, cross-examination of the deponent should ordinarily not be permitted if it would disclose matters covered by the objection.

Sankey v. Whitlam [1978] HCA 43; (1978) 142 CLR 1 at 38 per Gibbs ACJ, referred to with approval.

Alister v. The Queen (1984) 58 ALJR 97, applied.

(2) That in deciding whether cross-examination should be permitted, the court should take into account the possibility of the emergence of evidence going to the guilt or innocence of the accused, but a cross-examination in the nature of a "fishing" expedition should not be permitted.

(3) (Per Beaumont J) When the cross-examination proposed is directed at matters which are essentially collateral to the charges brought, a claim of public interest immunity should be displaced only if the cross-examiner can demonstrate a real likelihood that his cross-examination will materially assist the defence.

Alister v. The Queen (1984) 58 ALJR 97, per Gibbs CJ, applied.

HEARING

1984, December 5; 1985, February 12. 12:2:1985
APPEAL

Appeal from judgment and orders of Wilcox J dismissing an application for judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth).

Sir Maurice Byers QC and J Sackar, for the appellant.

R J Burbidge QC and R A Baker, for the second respondent.

P W Neil and S Torrington, for the fourth respondent.

J H Laurence QC, K A Chapple and H E Moore, for the fifth respondent.
Cur adv vult

Solicitor for the appellant: Australian Government Solicitor.

Solicitor for the first respondent: State Crown Solicitor.

Solicitor for the second respondent: Colin W Love & Co.

Solicitors for the third respondent: Hanley Cameron & Goold.

Solicitor for the fourth respondent: L Goldberg.

Solicitors for the fifth respondent: Australian Government Solicitor.
FPC

ORDER

Appeal allowed.

Set aside the orders made herein by Wilcox, J. on 12 October 1984.

In lieu thereof declare that the first respondent is bound to disallow cross-examination of Detective Chief Inspector J.F. Wheatley on the affidavit sworn by him on 7 August 1984.

Order that the second and fourth respondents pay the costs of the appellant of this appeal and of the proceedings before Wilcox, J.. Make no order for the costs of the first, third and fifth respondents.

Order that the cross-appeal be dismissed. Make no order as to the costs of the cross-appeal.

Appeal allowed

DECISION

This is an appeal by Michael Jerome Young, the Special Minister of State, from a decision of a Judge of this Court dismissing an application for review of a decision by Eris Adrian Quin, Stipendiary Magistrate, the first respondent. Mr. Quin was hearing committal proceedings against Tina Wong, the second respondent, David Young Te Chow, the third respondent and Charoen Rirasatik, the fourth respondent, in respect of alleged heroin offences. The prosecutor was the Director of Public Prosecutions, the fifth respondent.

Objection was taken by the Attorney-General for the Commonwealth, intervening by leave, to certain questions directed to a witness, Detective Sergeant Ward of the Australian Federal Police Drug Unit, on the ground of public interest immunity. This claim for immunity was supported by an affidavit of Detective Chief Inspector Wheatley of the same Unit. It was sought to cross-examine Inspector Wheatley on this affidavit. Mr. Quin held that counsel for the defence were entitled as of right to cross-examine on the issue of the claim to immunity, and he indicated that he would consider allowing certain cross-examination of Detective Chief Inspector Wheatley on general issues arising in the committal proceedings, although the latter would be by leave only, the defence having no right as such to cross-examine on the general issues. It was in respect of this decision that the application for review under the Administrative Decisions (Judicial Review) Act 1977 was brought.

The learned primary Judge made orders which would permit some cross-examination on a basis more limited than Mr. Quin had indicated he would allow, but dismissed the application for review which had sought orders preventing the cross-examination.

Further details of the course of the proceedings and of the facts are set forth in the judgment of the primary Judge. I shall not deal with them further except as may be required in setting forth my reasons for judgment.

Where a claim of public interest immunity is made in respect of documents it is for the Court to decide whether or not to uphold the objection. The Court may ask for a clarification or an amplification of the objection to production, being careful not to impose requirements which could only be met by divulging the very matters to which the objection relates. The Court also has power to examine the documents privately. It has been said this power should be sparingly exercised. Indeed, the better view appears to be that the Court should not inspect the documents unless it decides that, on balance, the documents probably ought to be produced. (Conway v. Rimmer [1968] UKHL 2; (1968) A.C. 910 at pp. 952, 953 and 971 and see Air Canada v. Secretary of State for Trade (1983) 2 W.L.R. 494).

These principles were applied by the High Court in Alister v. The Queen (1984) 58 A.L.J.R. 97. This case concerned a request for the production of Australian Security Intelligence Organization documents relating to an investigation made by a Crown witness. The witness was an agent and informer. The applicants for production challenged his evidence "as a fabrication and a frame-up" claiming that if produced it would assist their case. Gibbs C.J., Murphy and Brennan JJ. were in favour of inspecting the documents in question. Wilson and Dawson JJ. would have refused to have inspection. In the result, the Court did inspect the documents. Gibbs C.J., Wilson, Brennan and Dawson JJ. then came to the conclusion after inspection that the documents would not have been relevant to the trial of the appellants and that they ought not to order their disclosure. Murphy J. dissented taking the view that the Court ought to have the assistance of the parties. Gibbs C.J., Wilson, Brennan and Dawson JJ. said at p. 124:-

"The disposal of any point in litigation, without the fullest argument on behalf of the parties, is a course to which every court reacts adversely, however untenable the point in issue may first appear, and however unlikely it is that argument will assist it. The present case evokes the same reaction. But it is the inevitable result when privilege is rightly claimed on grounds of national security."

It seems that the same principles relating to public interest immunity as apply in relation to documents also apply in relation to oral evidence (Sankey v. Whitlam [1978] HCA 43; (1978) 142 C.L.R. 1 at p. 38). There appears to be a dearth of reported cases where these principles have in fact been applied by Courts to oral evidence although, in Registrar of The Workers' Compensation Commission of New South Wales v. FAI Insurance Limited (1983) 3 N.S.W.L.R. 362, McGrath J. of the Workers' Compensation Commission did have to consider this position. He held that the Court was not bound but was entitled to permit cross-examination on evidence offered to support a claim of public interest immunity in respect of oral evidence.

It was argued before us by counsel for the appellant that the Court not only was not bound to allow cross-examination upon an affidavit tendered in support of a claim to public interest immunity, but was not entitled to do so, as a general rule. Comparison was made with an affidavit of discovery of documents. In such an affidavit a claim for privilege may be made. The rule is that the oath of the deponent in the case of an affidavit of discovery has to be accepted. The Court will not permit cross-examination on such an affidavit and, generally, it will not permit countervailing evidence to be given, although there are well recognized exceptions to this (Edmiston v. British Transport Commission (1956) 1 Q.B. 191; Lyell v. Kennedy (1884) 27 Ch.D. 1 at p. 19; Ankin v. London & North East Railway Company (1930) 1 K.B. 527). In such cases the affidavit is regarded as being required in order to pledge the oath of some person in a position to speak to the matters in the affidavit. It is not tendered as evidence in the lis. It was submitted that an affidavit making a claim of public interest immunity (taking the place of the certificate of a Minister which was formerly conclusive) was in the same way required in order to pledge the oath of someone able to speak to the facts; it was not tendered as evidence in the lis, but for the purpose of enabling the Court to rule on the claim for immunity. There is a good deal of force in this submission.

Although before us counsel for the second respondent indicated that it was not now sought to cross-examine Detective Chief Inspector Wheatley on general issues arising in the committal proceedings, the learned magistrate was of opinion that he had a discretion to permit such cross-examination. But since the Chief Inspector's affidavit had not been tendered as evidence in the lis, any cross-examination going beyond the issue of the claim to immunity would, in my view, be impermissible.

The proposition that a claim to public interest immunity does not arise inter partes is further supported by the rule that the claim may be made by any person, including one not a party to the proceedings. Indeed, the Court itself may be obliged to prevent the disclosure of a document even though no claim for public interest immunity has been made, if it is clear to the Court that there may be serious injury to the national interest. There is no suggestion in such a case that the Court should in some way submit itself to interrogation by the parties or should ask for their assistance, though no doubt it would be within the power of the Court to seek such assistance. It has, moreover, been said that once the objection of public interest immunity appears, it cannot be waived by the Crown or anyone else (Rogers v. Home Secretary (1973) A.C. 388 per Lord Simon of Glaisdale at p. 407; cf. A. v. Hayden (1984) 56 A.L.R. 82 per Gibbs C.J. at p.90).

In order to adjudicate on the claim to immunity, counsel for the appellant submitted that there were various ways in which the Court might call for further material without resorting to cross-examination on the substantive parts of the affidavit. If the Court felt that it could not form an adequate judgment on the material in the affidavit, it might call for a further affidavit from the same deponent in order to clarify some point or amplify the claim. Or it might require the party claiming immunity, in this case the Attorney-General of the Commonwealth, to tender an affidavit sworn by a more senior officer or by the relevant Minister. Moreover, the proposition submitted to us was not put in absolute terms. It was conceded that a court, faced with a challenge to the correctness of the statement in the affidavit of the deponent's position (designed to show he was qualified to give the evidence) might well admit countervailing evidence to be given directed to showing that he did not hold that position and was not able to speak to the facts.

In my opinion, a claim of public interest immunity in relation to oral evidence should be dealt with very much in the same confined way as a claim for immunity in relation to documents. It would be a very rare case indeed where the Court would permit cross examination of a deponent or would allow countervailing evidence, although I am not prepared to say that the Court could not allow it.

In the present case the matters which had already arisen before the magistrate by questions to Detective Sergeant Ward or which were forecast to be raised by Counsel for the accused were set out in the reasons for judgment of the primary Judge as including the following:-

"1. Whether the courier was a Thai police informant/agent;

2. Whether an interpreter used by the Australian Federal Police was a

Thai police officer;

3. The positioning of various cameras used in police surveillance of persons involved in the matter;

4. Whether the courier used his real name;

5. Whether the courier was paid any money by police or any other

person;

6. The present whereabouts of the courier;

7. The authority by which the courier entered and left Australia;

8. The whereabouts of certain moneys said to have been given to the

courier;

9. The frequency and extent of the movements in and out of Australia by the courier."

The order which his Honour made and his reasons for judgment indicate that in his view it was not wrong for the magistrate to allow cross-examination of Inspector Wheatley on his affidavit but that he should be careful to ensure that the matters which were described as matters in general issue in the committal proceedings would not be disclosed; in other words, that the material relevant to the matters listed 1 to 9 would not be disclosed.

Before us counsel for the second and fourth respondents indicated the kind of cross-examination which they wished to have in relation to Inspector Wheatley. Both raised the question of Inspector Wheatley's bona fides which they said they wished to attack. They indicated that this was in order to show wrongdoing on the part of the police engaged in the operation, so that the inference might be drawn that Inspector Wheatley was claiming public interest immunity simply to cover up improper conduct or prevent embarrassment of the Australian Federal Police. The difficulty of allowing cross-examination in order to establish a lack of bona fides in the deponent by demonstrating wrong conduct of the police in any of the areas covered by paragraphs 1 to 9 is that it would not be possible to do this without canvassing material relevant to these matters or to some of them. It would be inevitable that some at least of the material for which immunity was claimed would in the process be disclosed.

As stated above counsel for the second respondent did submit that before the magistrate it was not sought to examine Inspector Wheatley on the matters in general issue in the committal proceedings. He particularly indicated that, if cross-examination on the affidavit was permitted, it was not proposed to deal with the matter referred to in paragraph 1, because the name of the courier had already been given in committal proceedings, or the positioning of cameras referred to in paragraph 3. However, notwithstanding that counsel may assert an absence of intention to canvass general matters in issue in the committal proceedings, the reality is that once the submission is made that the proposed attack on Inspector Wheatley is against his bona fides, based on a claim that the police have acted improperly in relation to the matters or some of the matters included in paragraphs 1 to 9, it is inevitable that cross-examination on bona fides must involve the canvassing of these issues. This appears to me in itself a reason for refusing cross-examination in the present case.

Assuming a sound claim for public interest immunity is made out but it is also shown that the deponent has a particular motive for raising that claim, his motive involving a private or ulterior purpose, should the claim for public interest immunity be rejected and the public interest be allowed to be damaged on that account? It is by no means clear that it should. Rather it seems a claim of this kind is to be decided on balancing public interest considerations which on both sides are of an objective character.

The public interest has two aspects which may conflict: one that harm shall not be done to the community by the disclosure of material; the other that the administration of justice shall not be frustrated by the withholding of material which should be produced if justice is to be done. The court has to decide which aspect of the public interest predominates. It was expressed by Gibbs A.C.J. in Sankey v. Whitlam (supra at p. 39) as follows:-

"In some cases . . . . the Court must weigh the one competing aspect of the public interest against the other in deciding where the balance lies."

Stating the position in regard to documents, Gibbs C.J. in Alister v. The Queen (supra at p. 98) said:-

"The final steps in this process - the balancing exercise - can only be taken when it appears that both aspects of the public interest do require consideration - i.e., when it appears, on the one hand, that damage would be done to the public interest by producing the documents sought or documents of that class, and, on the other hand, that there are or are likely to be documents which contain material evidence."

In the present case when one comes to perform the balancing task, the public interest which is set forth in the affidavit of Inspector Wheatley seems clear enough and of considerable weight on one side of the scale. On the other side I have sought in vain for any evidence relevant to a defence which might be revealed if the evidence was not withheld. None of the respondents has put forward any affirmative matter of defence to which any of the evidence concerning paras. 1 to 9 would or might relate. It was faintly suggested that cross-examination on these topics may possibly reveal a case of entrapment but entrapment is not a defence according to our law. Indeed, in performing the balancing exercise in the present case, I am not by the arguments of counsel directed to any weights to be placed in the scales on the side of disclosure in the interests of the proper administration of justice so far as affirmative matters of defence are concerned. It may be that cross-examination on one or more of the matters set forth in paragraphs 1 to 9 might furnish some material destructive of the case for the prosecution, for example, whether the heroin was imported. However, no matters of substance have so far been raised. The matter appears to be still at the "fishing" stage. I am not persuaded that any substantial weight is to be placed in the scale on this score.

One grey area remains. If the Crown tenders evidence through Sergeant Ward in support of the charge, either in the committal proceedings or at the trial if this eventuates, it is difficult to see that Sergeant Ward could not be tested by cross-examination on such evidence given in support of the Crown case. The question whether the Crown can offer evidence in support of a prosecution and at the same time claim privilege in respect of it might then arise in one form or another. But, as I understand the matter, this question has not arisen in the committal proceedings.

In the result, it appears to me that cross-examination upon the affidavit by Detective Chief Inspector Wheatley should not be permitted.

I would allow the appeal with costs and would dismiss the cross-appeal. I would agree with the detailed orders proposed in the reasons for judgment of Beaumont J.

In this matter I have had the advantage of reading the judgments to be delivered by the other members of the Court. I am thus saved the need to set out the facts and background of the matter and to refer to a number of the relevant authorities. Notwithstanding that there was a claim for relief made in the application to prevent the cross-examination of Sergeant Ward on matters in respect of which the claim for immunity was made, no submission concerning that matter was made to us. The argument was concentrated upon whether counsel for the respondents should be permitted to cross-examine Chief Inspector Wheatley. Guided by what Gibbs A.C.J. (as he then was) said in Sankey v. Whitlam [1978] HCA 43; (1978) 142 CLR 1 at p. 38, I conclude that the problem is to be approached in the same way as a case involving a claim for immunity from production of documents based on public interest grounds. In such a case cross-examination of the deponent of the affidavit claiming immunity is not usually permitted. The Court may accept the affidavit as conclusive, or it may require the production of the documents so that it may inspect them for the purpose of determining whether it will accede to the claim. The documents will not be made available for inspection by the requesting party. In some cases not only the documents, but also the affidavit, may not be made available to him.

In a case involving oral evidence, as opposed to documents, the Court lacks the ability in an appropriate case to check, so to speak, the validity of the claim by reference to objective evidence. By that I do not mean that the evidence of a police officer such as Chief Inspector Wheatley may not be objective, but production of documents in a documentary case would, in many cases, help a court more confidently to reach the conclusion that the ground had been made out. That will not be possible where no documents are involved.

In Alister v. The Queen (1984) 58 ALJR 97, after the Court had inspected the documents in question, the majority referred (p. 124) to the fact that the disposal of any point in litigation without the fullest argument on behalf of the parties is a course to which every Court reacts adversely. Likewise, the determination of any factual question without the benefit of cross-examination provokes the same adverse reaction.

Nevertheless a procedure must be adopted to cope with the problem. Except in cases where the matter arises in the course of proceedings and the court or other tribunal hearing the matter raises the question, it will be for the Crown to satisfy the judge or magistrate that the claim is made out. That will be done in most cases by the judge or magistrate weighing the strength and persuasiveness of the material in the affidavit and taking into account also the seniority and standing of the deponent of it. All this needs to be done with the whole of the circumstances of the case in mind. Those affected by the application for immunity should be given the opportunity of leading relevant evidence on the question. But I am firmly of the view, applying the practice which exists in relation to claims for immunity from production of documents, that only in exceptional circumstances should cross-examination be allowed. That is principally because it will be impossible for any cross-examination to take place without the matters in respect of which the claim is made becoming the subject of it and thus being revealed. The fact that such a cross-examination could be conducted in camera provides no satisfactory solution to the problem.

The principal matter advanced by counsel for the second respondent in support of his claim to cross-examine Inspector Wheatley related to the whereabouts and availability of the courier for interview by counsel and solicitor instructed by the second respondent. Counsel said,

"We would like to know whether he was in Australia. We do not want to know precisely his address, but we would like to know through the Crown whether he is here; whether he could be interviewed by us; and whether he would be able to give evidence that would assist our case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . There was evidence given in cross-examination in that case (another committal proceeding against other defendants but connected with the instant matter) (which) suggested that the bag containing the $67,000 Australian currency had been given to Komthacrue (the courier) and that he had left Australia with it. We submit that if that is so that smacks of great impropriety in the role of the police because, in the very least, that money being the proceeds of crime, one would think would be forfeitable to the Crown, and what information we have available to us through those other committal proceedings indicates that this courier, who was also indicated in that proceeding to be a Thai police informant, was allowed to leave the country with the proceeds of crime."

Later counsel made reference to cross-examination of Sergeant Ward in which Sergeant Ward agreed that Komthacrue had imported 28 kilograms of heroin into Australia. Sergeant Ward was asked why Komthacrue had not been charged with an offence and it was then that the claim of immunity was made.

Counsel for the fourth respondent supported the submissions made by counsel for the second respondent. The second and fourth respondents were the only respondents opposing the relief sought by the applicant Minister.

The matters to be explored in such a cross-examination could not, in my opinion, go to the guilt or innocence of the accused. In the course of argument counsel were pressed to state the relevance of the matters relied upon. No satisfactory answer to the Court's questions was forthcoming. I agree with the other members of the Court in their view that the cross-examination proposed was no more than a fishing expedition embarked upon in the hope that something might be disclosed upon which a defence might be based. It follows that the case is one in which it is clear that no cross-examination of Inspector Wheatley should be allowed. In saying what I have I do not wich to be taken as saying that I would hold that cross-examination should necessarily be allowed in cases where the cross-examination would go to issues which bear on the guilt or innocence of an accused person. Even if the questions were relevant there may be overriding considerations which would nevertheless deny a party a right to cross-examine a witness claiming public interest immunity.

What then should the outcome of the appeal be? The Magistrate devised a procedure akin to the taking of evidence on the voir dire. He referred to the need to conduct "a trial within a trial". That course is plainly inappropriate. Apart from any other consideration, it would necessarily involve the cross-examination of Inspector Wheatley. For the Magistrate to embark on the course he proposed would thus involve him in making an error of law. That conclusion warrants the interference of this Court. I say that not unmindful of discretionary arguments which may have been relied upon by the respondents. No such matters were put to us and I would respectfully agree with what was said about this matter by the learned primary Judge.

It follows that the appeal should be allowed and a declaration made that the Magistrate should not permit cross-examination of Inspector Wheatley on his affidavit. The submissions made by the parties do not require the Court to go further, but I think I should do so. If the Magistrate is satisfied that Inspector Wheatley is a sufficiently senior police officer, and if he is of the view that the contents of the affidavit, looked at in the light of the whole of the circumstances of the case, are sufficiently comprehensive, he should accept it and give effect to the claim when the cross-examination of Sergeant Ward resumes. If he is not so satisfied, he should ask for a more comprehensive affidavit or for an affidavit from a more senior police officer or from the Minister or Attorney-General. If he follows that course, he will need to assess the position as it then is when any fresh affidavit is produced.

I should perhaps add that this does not appear to be a case where the respondents have relevant evidence to lead. No mention of any such evidence was made to the Magistrate, to the learned primary Judge or to us.

In the result I would allow the appeal and set aside the order made by the learned primary Judge. I would declare that the respondent Magistrate is bound to disallow cross-examination of Inspector Wheatley.

The cross-appeal does not, in the circumstances, arise for consideration. I would dismiss it. I agree in the orders for costs which Beaumont J. proposes.

The Special Minister of State appeals from a judgment of a single judge of the Court dismissing an application by the Minister for judical review under the Administrative Decisions (Judicial Review) Act, 1977 ("the Judicial Review Act"). Review was sought of a decision of the first respondent, a stipendiary magistrate, who is currently hearing committal proceedings brought by the fifth respondent against the second, third and fourth respondents. The charges allege offences under s.233B of the Customs Act, 1901 and under the Poisons Act, 1966 (N.S.W.). In summary, the allegations of offences under the Commonwealth Act are that in the month of April 1984, the respondents concerned were guilty of a conspiracy to import heroin into Australia, or were knowingly concerned in the importation of heroin into Australia, or had possession, or attempted to obtain possession, of heroin. Shortly stated, the offences alleged under the State Act relate to a conspiracy to supply heroin and to the supply of heroin.

The prosecution case is that on 19 April 1984 a Thai national, identified by name at the committal proceedings but generally referred to as "the courier", entered Australia on a flight arriving at Sydney airport; he brought with him a suitcase; he took it to a motel, where he met some police officers; they found it contained a substantial quantity of heroin which they unpacked; they repacked it with a small, though trafficable, quantity of heroin and with plaster of paris; they kept the suitcase under surveillance and, over the ensuing 10 days, it led them to each of the three accused persons each of whom either had, or sought to obtain, possession of the suitcase and its contents.

Detective Sergeant Ward of the Australian Federal Police Drug Unit was called by the prosecution in the committal proceedings. In the course of cross-examining Sergeant Ward, counsel for the accused sought to explore certain of the circumstances surrounding the commission of the offences alleged. These circumstances, which are the matters of contention in these proceedings, were described by the learned judge as follows:

1. Whether the courier was a Thai police informant/agent;

2. Whether an interpreter used by the Australian Federal Police was a

Thai police officer;

3. The positioning of various cameras used in police surveillance of persons involved in the matter;

4. Whether the courier used his real name;

5. Whether the courier was paid any money by police or any other

person;

6. The present whereabouts of the courier;

7. The authority by which the courier entered and left Australia;

8. The whereabouts of certain moneys said to have been given to the

courier;

9. The frequency and extent of the movements in and out of Australia by the courier."

His Honour was told by counsel for the accused that these matters were said to be relevant to the committal proceedings because the answers may show that the drugs the subject of the charges were not in fact imported or they may reveal one or more of what are said to be "defences" of entrapment or bias (cf. Bunning v. Cross [1978] HCA 22; (1978) 141 C.L.R. 54). The prosecution has indicated that it does not propose to call the courier to give evidence before the magistrate.

Objection to the cross-examination of Sergeant Ward in relation to these matters was taken on behalf of the Attorney-General for the Commonwealth, who was granted leave to intervene for this purpose. In support of that objection there was tendered to the learned magistrate an affidavit sworn by Detective Chief Inspector, J.F. Wheatley, the officer in charge of the drug operations unit in New South Wales of the Australian Federal Police. In his affidavit, Inspector Wheatley deposed to the existence of regular co-operation between police forces in various countries in relation to the drug trade and expressed the opinion that to permit questions in relation to the matters mentioned would not be in the public interest because the answers might reveal police methods of operations to the prejudice both of future activities of the Australian Federal Police and of relationships with overseas police forces. He also expressed concern that the revelation of information regarding surveillance of drug offenders would be likely to assist those in the drug trade to mount counter surveillance and would endanger the life or safety of informants and law enforcement officers.

Counsel for the accused respondents contested the claim for immunity raised by the objection and sought to cross-examine Inspector Wheatley. After hearing argument, the magistrate ruled as follows:

" . . . it seems to me that the general law applies, namely, that the issue of admissibility of the material sought to be withheld on the basis of the public interest should be the subject of a trial, that is a trial within a trial of that very issue, that each party should have the right to call and examine witnesses and to cross-examine those, if any, of the opposite party. It is then for the tribunal before which such a trial proceeds to fix the circumstances in which the trial should proceed so as to avoid the general dissemination of the so-called 'immune' material which turns out ultimately to be immune. I am not convinced the defence counsel has the right to cross-examine a witness called in such a trial on a general issue. That is on the general issues in these particular circumstances raised in the committal proceedings. He is . . . restrained by the rules of relevance . . . the defence in these committal proceedings should have the benefit of cross-examination of the author of the affidavit which has been tendered and of any other witness who may be called on the issue of non-disclosure in the public interest."

The appellant, the applicant below and the Minister responsible for the operations of the Australian Federal Police, then sought under the Judicial Review Act a review of this decision; an injunction restraining the learned magistrate from permitting the cross-examination of Inspector Wheatley upon his affidavit; and an order staying the committal proceedings insofar as they involve the giving of any evidence which is claimed in the aforesaid affidavit to be privileged on the grounds of the public interest.

The learned judge first considered the adjectival question whether, in the light of decisions such as Lamb v. Moss (1983) 49 A.L.R. 533 at p.564 and Choo Cheng Kui v. Quinn (Full Federal Court, unreported, 25 September 1984), the Court should, in the exercise of its discretion, decline to intervene in the committal proceedings notwithstanding that an error of law of the kind described in the Judicial Review Act may be made out. His Honour said, correctly I think, that it would normally be undesirable to embark upon a review of a magistrate's ruling on a matter of evidence except where the ruling related to a genuine and important question of legal principle not dependent upon the detail of the evidence in the particular case. His Honour was of the view, which is not challenged by the respondents in this appeal, that the present application fell into the exceptional class of case of which Sankey v. Whitlam [1978] HCA 43; (1978) 142 C.L.R. 1 is an example.

In considering the substantive issues raised by the application, the learned judge referred to the authorities dealing with the allied question of an objection to the production of documents on the ground of the public interest, in particular, In re Grosvenor Hotel, London (1964) 1 Ch. 464 where the possibility of cross-examination of the Minister on his affidavit was contemplated by Cross, J. (as he then was) if the court were of the view that the Minister was displaying any "lack of candour" or any "tendency to prevaricate". The learned judge also considered a ruling on evidence given in Registrar of the Workers' Compensation Commission of New South Wales v. F.A.I. Insurances Limited (1983) 3 N.S.W.L.R. 362, where McGrath J. (as he then was) rejected any "unfettered" right to cross-examine a deponent on his affidavit objecting to production. His Honour noted that, in Sankey v. Whitlam, supra, Gibbs, A.C.J. (as he then was) observed that the principles under consideration in that case apply in relation to oral as well as to documentary evidence. The learned judge then cited the following passage from Alister v. The Queen (1984) 58 A.L.J.R. 97 made after the Court had inspected the documents in question (at p.124):

". . . we do not discount the significance of the argument that the parties may be more able than the members of the court to discern the possible relevance or material in a trial of this kind, but we remain satisfied that the material would not assist the appellants

. . .
the disposal of any point in litigation, without the fullest argument

on behalf of the parties, is a course to which every court reacts adversely, however untenable the point in issue may first appear, and however unlikely it is that argument will assist it. The present case evokes the same reaction. But it is the inevitable result when privilege is rightly claimed on grounds of national security."

The learned judge thought that these comments would have been quite inappropriate if the situation were that the parties not only had no entitlement to see the documents but that the court had no discretion to give access to them for the purpose of considering the claim to immunity or to hear them on that question. He concluded (at p.10 of his reasons):

". . . similar considerations apply to the cross-examination of a deponent to an affidavit. In many, perhaps most, cases there will be no occasion for oral evidence: the affidavit will be clear on its face and the court will be in a position to make a ruling. In other cases the court may 'ask for a clarification or an amplification of an objection to production'. I see no reason to tie the hands of the court as to the manner in which it obtains such clarification or amplification . . . As a general principle, there is no reason to deny to the parties to the litigation the opportunity of hearing any oral evidence which is given in clarification or amplification in response to questions from the court . . . submissions (on behalf of a party) may persuade the court to put further questions to the claimant. If such matters may be raised by counsel for a party indirectly with the claimant, it is difficult to see any reason to deny to the court the option of allowing counsel to raise the matters directly by way of crossexamination of the claimant . . . the appropriate procedure may range all the way from permitting the parties to cross-examine the deponent, and to put to the court submissions on his claim, to the other extreme of denying to the parties any knowledge of the basis of the claim."

The learned judge accordingly dismissed the application, rejecting the appellant's contention that, as a matter of law, Inspector Wheatley could not be cross-examined on his affidavit and holding that, if appropriate, cross-examination could be permitted in the exercise of the learned magistrate's discretion.

Although the second, third and fourth respondents adduced no evidence on the point, it was asserted before us by counsel on their behalf that they desire to cross-examine Inspector Wheatley with a view to challenging his bona fides in making the claim for immunity. Specifically, counsel said, their instructions are that the Inspector was making the claim simply in order to "cover up" improper conduct of the Australian Federal Police. On the other hand, the appellant submits that if cross-examination were permitted, even on the limited basis foreshadowed, it would be inevitable that some at least of the material for which immunity is claimed would be disclosed and the public interest would suffer irreparably.

The relevant principles in this area were conveniently stated for present purposes by Lord Simon of Glaisdale in D. v. National Society for the Prevention of Cruelty to Children [1977] UKHL 1; (1978) A.C. 171 at pp.232-3:

"Then the law proceeds to recognise that the public interest in the administration of justice is one facet only of a larger public interest - namely, the maintenance of the Queen's peace. Another facet is effective policing. But the police can function effectively only if they receive a flow of intelligence about planned crime or its perpetrators. Such intelligence will not be forthcoming unless informants are assured that their identity will not be divulged: see Lord Reid in Conway v. Rimmer [1968] UKHL 2; (1968) A.C. 910, 953G-954A. The law therefore recognises here another class of relevant evidence which may - indeed, must - be withheld from forensic investigation - namely, sources of police information: Rex v. Hardy (1794) 24 State Tr. 199, 808; Hennessy v. Wright, 21 Q.B.D. 509, 519; Marks v. Beyfus, 25 Q.B.D. 494.

Here, however, the law adds a rider. The public interest that no innocent man should be convicted of crime is so powerful that it outweighs the general public interest that sources of police information should not be divulged, so that, exceptionally, such evidence must be forthcoming when required to establish innocence in a criminal trial: see the citations in Reg. v. Lewes Justices, Ex parte Secretary of State for the Home Department (1973) A.C. 388, 408A. It would appear that the balance of public interest has been struck, both in the general rule and in its rider, in such a way as to conduce to the general advantage of society, with the public interest in the administration of justice as potent but not exclusive."

(See also per Lord Diplock (1978) A.C. at p.218; Sankey v. Whitlam, supra, per Stephen, J. at pp.61-2; Alister, supra, per Gibbs, C.J. at p.99; and on the general question of immunity on national security grounds see Secretary of State for Defence v. Guardian Newspapers Limited (1984) 3 W.L.R. 986; In Re The Council of Civil Service Unions & Ors., House of Lords, unreported, 22 November 1984; A. v. Hayden & Ors., High Court of Australia, unreported, 6 November 1984, The Church of Scientology Inc. v. Woodward (1983) 57 A.L.J.R. 42 at pp.51 and 57.)

These principles, which form part of the laws of evidence and also part of our constitutional law, are applied by the courts, of their own motion if need be, to meet the exigencies of the particular situation which has arisen. If the question arises in a documentary context, it may be appropriate, as was done in Sankey v. Whitlam, supra, and Alister, supra, for the court to inspect the documents privately and rule on the objection to production with the benefit of its inspection. Where oral evidence is objected to and the objection is upheld on public interest grounds, the court has power to forbid cross-examination on the topic. Thus, in Chandler v. Director of Public Prosecutions [1962] UKHL 2; (1964) A.C. 763, the House of Lords held, in criminal proceedings, that it was proper for the trial judge to refuse to permit cross-examination on the matter in respect of which the Crown claimed immunity on grounds involving national security.

Prima facie, in my view, the matters sought to be opened up in the cross-examination of Inspector Wheatley fall squarely within a traditional head of the public interest, viz., that police methods of operation and the identity of police sources of information should not be publicly disclosed. Unless, therefore, the accused can demonstrate that the proof of these matters is necessary or desirable in order to maintain their innocence (see Marks v. Beyfus, supra), the appellant's objection to cross-examination in such areas should be upheld.

Although counsel for the accused sought vigorously to justify their wish to cross-examine Inspector Wheatley on the matters now in contention, they were unable to indicate any particular nexus between their line of questioning and any specific defence to the charges. They could point to no evidence or other material to support their contention that the cross-examination could somehow throw up an answer to the prosecution. In the ultimate analysis, counsel for the accused respondents were forced to assert a right to conduct an exploratory type of cross-examination in the hope or, at best, the expectation, that something might turn up.

In my opinion, where, as here, a prima facie case has been made out for excluding cross-examination on public interest grounds, something more than the mere assertion of a right to conduct a "fishing" expedition is required in order to displace the prima facie claim to immunity. The position may well be different if, as in Sankey v. Whitlam, supra, immunity is claimed in respect of evidence lying at the very heart of the prosecution. But the cross-examination proposed here is directed at matters which are essentially collateral to the charges brought. In such a case, the claim to immunity should be displaced only if the cross-examiner can demonstrate a real likelihood that his cross-examination will materially assist his defence. The following observations of Gibbs, C.J. in Alister, supra, at p.99 are pertinent in this connection:

"Just as in the balancing process the scales must swing in favour of discovery if the documents are necessary to support the defence of an accused person whose liberty is at stake in a criminal trial (see Sankey v. Whitlam at 42, 62), so, in considering whether to inspect documents for the purpose of deciding whether they should be disclosed, the court must attach special weight to the fact that the documents may support the defence of an accused person in criminal proceedings. Although a mere 'fishing' expedition can never be allowed, it may be enough that it appears to be 'on the cards' that the documents will materially assist the defence."

(See also per Wilson and Dawson, JJ. at pp.110-111.)

As matters presently stand, the application made on behalf of the accused respondents to cross-examine Inspector Wheatley on the topics mentioned would appear to fall into the former rather than the latter of the two possible situations described by the Chief Justice: there is no defence of "entrapment" known to our law (see R. v. Sang [1979] UKHL 3; (1980) A.C. 402; Cleland v. R. (1982) 43 A.L.R. 619; Corrigan v. Maloney (1981) 32 S.A.S.R. 63 at p.70; Gillies, The Law of Criminal Investigation, at pp.283 ff.). Since, on the material now available, it is not apparent how the cross-examination of Inspector Wheatley could assist the defence and since mere assertion to the contrary is not enough to warrant a general investigation of the position as foreshadowed by counsel for the accused, it must follow, in my opinion, that the appellant was entitled to the relief he sought in respect of the cross-examination of Inspector Wheatley at this stage at least. If, subsequently, the second, third or fourth respondents can adduce affirmative evidence to indicate some necessary connection between the matters now sought to be explored in cross-examination and their defence to the prosecution, different considerations may well apply.

In dismissing the application, the learned judge made no order as to costs. The second respondent has cross-appealed on the question of costs, submitting that, as a successful defendant, she should have received her costs (cf. Milne v. Attorney-General for Tasmania [1956] HCA 48; (1956) 95 C.L.R. 460 at p.477). Since, in my view, the appeal should be allowed, the cross-appeal must be dismissed.

I would make the following orders:

1. Appeal allowed.

2. Set aside the orders made herein by Wilcox, J. on 12 October 1984.

3. In lieu thereof declare that the first respondent is bound to disallow

cross-examination of Detective Chief Inspector J.F. Wheatley on the affidavit sworn by him on 7 August 1984.

4. Order that the second and fourth respondents pay the costs of the appellant of this appeal and of the proceedings before Wilcox, J.. Make no order for the costs of the first, third and fifth respondents.

5. Order that the cross-appeal be dismissed. Make no order as to the costs of the cross-appeal.