W v M [2011] NSWSC 1634

W v M [2011] NSWSC 1634

The material was prima facie disclosable under s 15A because it could point to a rational hypothesis consistent with the innocence of the accused in serious murder proceedings, but the existing non-publication orders and the bona fide claim of legal professional privilege justified a limited course: police could inform the Director of Public Prosecutions that they held privileged material and material subject to the non-publication orders, and provide these reasons, rather than disclose the underlying documents at this stage.

Jurisdiction
Australia
Judgment Date
19 December 2011
Procedural Posture
Equity Division Proceedings Concerning Injunctions and Non Publication Orders / Notice of Motion by the Commissioner of Police to Vary Non Publication Orders to Permit Disclosure of Material
Outcome
Application allowed in part by permitting limited disclosure to the Director of Public Prosecutions and production of the reasons in response to subpoena; full disclosure of the underlying documents was not ordered.
Legal Topics
['non Publication Orders' 'disclosure to Director of Public Prosecutions' 'legal Professional Privilege' 'fair Trial' 'abuse of Process' 'confidentiality']
['courts and Judges' 'criminal Procedure' 'equity' 'defamation'] ['non Publication Orders' 'disclosure to Director of Public Prosecutions' 'legal Professional Privilege' 'fair Trial' 'abuse of Process' 'confidentiality']

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Procedural Posture

Equity Division Proceedings Concerning Injunctions and Non Publication Orders / Notice of Motion by the Commissioner of Police to Vary Non Publication Orders to Permit Disclosure of Material

Legal Issues

  1. 1 ['Whether documents and information subject to non-publication orders were disclosable to the Director of Public Prosecutions under (NSW) Director of Public Prosecutions Act 1986, s 15A.' 'Whether material subject to a bona fide claim of legal professional privilege had to be disclosed or only notified to the Director of Public Prosecutions.' "Whether W's interests in reputation, welfare and restricted circulation of the material should yield to the interests of accused persons in obtaining information that might assist their defence." 'What variation, if any, should be made to the existing non-publication orders.']

Ratio Decidendi

The material was prima facie disclosable under s 15A because it could point to a rational hypothesis consistent with the innocence of the accused in serious murder proceedings, but the existing non-publication orders and the bona fide claim of legal professional privilege justified a limited course: police could inform the Director of Public Prosecutions that they held privileged material and material subject to the non-publication orders, and provide these reasons, rather than disclose the underlying documents at this stage.

Court Disposition

Application allowed in part by permitting limited disclosure to the Director of Public Prosecutions and production of the reasons in response to subpoena; full disclosure of the underlying documents was not ordered.

Orders

  • ['It will not be a contravention of the non-publication orders made on 9 September 2009, as varied, for the Commissioner of Police to disclose to the Director of Public Prosecutions, pursuant to (NSW) Director of Public Prosecutions Act 1986, s 15A(1) and s 15A(6), that the Police have obtained information,...