FEDERAL COURT OF AUSTRALIA

Cabal v United Mexican States (No 4) [2000] FCA 405

PRACTICE AND PROCEDURE – production of documents – public interest immunity – claim by Correctional Services Commissioner – undertaking by counsel not to disclose contents of documents produced

Sankey v Whitlam (1978) 142 CLR 1 cited

Alister v the Queen (1984) 154 CLR 404 cited

D v National Society for the Prevention of Cruelty to Children (1978) AC 171 cited

Ebner v Official Trustee in Bankruptcy [2000] FCA 182 cited

CARLOS CABAL PENICHE & MARCO PASINI BERTRAN v UNITED MEXICAN STATES & ANOR (No 4)

V 728 of 1999

GOLDBERG J

MELBOURNE

30 MARCH 2000

THE COURT ORDERS THAT:

UPON:            (a)        Counsel for the applicants undertaking to the Court that they will not disclose the contents of the documents sought by the applicants from the Correctional Services Commissioner to any person other than each other and that they will not use any information derived from any inspection of those documents for any purpose other than the purpose of the application for bail initiated by notice of motion filed 9 February 2000

(b)        Counsel for the first respondent undertaking on their own behalf and on behalf of Mr Daniel Caporate, their instructing solicitor, that they will not disclose the contents of the documents sought by the applicants from the Correctional Services Commissioner to any person other than each other and that they will not use any information derived from any inspection of those documents for any purpose other than the purpose of the application for bail initiated by notice of motion filed 9 February 2000

1.         The application by the Correctional Services Commissioner that she be excused from producing the documents sought by the applicants is dismissed.

2.         The Correctional Services Commissioner not be required to produce to the Court documents coming within the category of assessment records before 2.15pm on Tuesday 4 April 2000.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

REASONS FOR JUDGMENT

HIS HONOUR:

1                     There is before me the equivalent of the return of a subpoena by the applicants directed to the Correctional Services Commissioner (‘the Commissioner”) to produce two classes of documents.  I say the equivalent of the return of the subpoena because an informal request was made either late last night or early this morning, as the result of cross‑examination of Mr Kelly yesterday, for certain documents, to which I will refer in a moment, to be produced.  Counsel have sensibly adopted the basis that, rather than require a formal subpoena to be served and responded to, I should treat the matter on the basis that a subpoena has been served and I am dealing with its return.

2                     I have heard submissions from counsel for the applicants, counsel for the Commissioner and counsel for Mr Kelly, the head of operations of Port Phillip Prison, the witness presently under cross‑examination.  In general terms two classes of documents are sought.  The first class is documents relating to the criminal history of those inmates presently held in the Sirius East Unit of Port Phillip Prison.  The second class is what I will call generally, assessment records kept by the Commissioner albeit held in the general custody of the prison relating to assessments from time to time of the present inmates of Sirius East.  It is put to me, and does not appear to be in issue, that those records include matters relating to the health of the inmates. 

3                     The applicants seek the production of these documents on the basis that they are relevant to particular issues which are raised before me in this bail application.  One of the live issues is that the conditions under which the applicants are being detained and have been detained since 23 December 1999 in Sirius East are degrading and are such that the applicants wish to submit that their health and safety is either at risk, or potentially at risk, and that the conditions under which they are held are not suitable or appropriate for persons held under a provisional warrant for extradition, or detained as a result of a magistrate’s decision that they are eligible for extradition under s 19 of the Extradition Act 1988 (Cth).

4                     In particular, it is submitted, in the applicants’ written outline of submissions presently before me, that the applicants are being placed with prisoners who are seriously ill with communicable diseases and that they are being confined constantly and in close quarters with prisoners introduced to Sirius East since the last bail application, who have been convicted of the most serious crimes including murder, armed robbery and rape.

5                     Some evidence has been given on these matters by the applicants, albeit in a form which has been objected to, and the applicants have called for these documents for the purpose of investigating the two subject matters to which I have referred; that is, that the applicants have been placed with prisoners who are seriously ill with communicable diseases and that they are confined with prisoners convicted of most serious crimes. 

6                     The Commissioner has objected to the production and also the inspection of the documents and is supported by counsel for Mr Kelly, on the basis of what I will loosely call public interest immunity.  That issue has been canvassed generally in cases such as Sankey v Whitlam (1978) 142 CLR 1; Alister v the Queen (1984) 154 CLR 404; D v National Society for the Prevention of Cruelty to Children (1978) AC 171; and recently in this Court by Finkelstein J in Ebner v Official Trustee in Bankruptcy [2000] FCA 182.

7                     The Commissioner submits that the release of these documents in both categories to the applicants would be contrary to the public interest because it would inhibit prisoners in the future from communicating information about themselves which the Commissioner regards as being necessary in accordance with the Commissioner’s duty under s 8A of the Corrections Act 1986 (Vic) to provide for the safe custody and welfare of prisoners.  It is submitted that the release of the information relating to one prisoner to other prisoners would make prisoners reluctant, at the least, to provide information in the future.  It is submitted that in effect, that it is information confidential to the prisoners who supply the information, although it is disclosed to the Commissioner.

8                     It is also submitted in relation to the assessment records that it would take some two days for the material to be produced.  In short, the submission is that the requirement to produce the documents would prejudice the proper functioning of the statutory obligations of the Commissioner.

9                     As Gibbs CJ pointed out in Alister v the Queen (supra) at 412, I am faced with two conflicting aspects of public interest.  Firstly, whether harm would be done by the production of documents, and secondly, whether the administration of justice would be frustrated or impaired if the documents were withheld.  In his Honour’s terms, what I have to do is to decide which of those aspects predominates.

10                  It is an area where two very important principles of law conflict.  On the one hand, the applicants wish to seek to establish matters and facts which they regard as highly relevant to their application for bail.  On the other hand, it is said that confidential information, especially in relation to persons in a prison population, should not be made available to any other prisoner.

11                  Confidentiality of itself is not a separate head of public interest immunity or privilege in that sense, although it is a material consideration to bear in mind when public interest immunity is claimed.  That matter was considered in D v National Society for the Prevention of Cruelty to Children (supra), to which I have already referred.

12                  In the course of submissions I asked senior counsel for the applicants, Mr Gilmour QC, who appears with Mr Howard for the applicants, whether he would be prepared to give a personal undertaking on behalf of himself and Mr Howard, that if such documents were produced, they would give an undertaking not to disclose the contents to anyone at all, including their solicitors and the applicants.  I hasten to say, I mean no disrespect to either the applicants or their solicitors, but I am concerned with the confining of highly confidential information.  He indicated, quite properly, that he needed to seek instructions about that matter.

13                  I accept the fact that it is necessary for documents of this nature relating to prisoners to be kept confidential and not to be disclosed to other prisoners, certainly not without the consent of the particular prisoners whose records are in issue.  I accept that the Commissioner is concerned to ensure that she is able to carry out her statutory obligations and provide for the safe custody and welfare of prisoners who have provided information to her and her staff and the staff of the prison on a confidential basis.

14                  However, it seems to me that the confidentiality with which the Commissioner is concerned will certainly be preserved if the information relating to the prisoners is kept confidential to counsel and not disclosed to any other person.  It is said that the prisoners will find out in due course that information about them has been disclosed; but it will not be disclosed to the applicants.  It will only be disclosed for a very limited purpose. 

15                  I am satisfied that so long as the undertaking by counsel is offered, if the documents are supplied under the undertaking which I have proposed for counsel for the applicants, that the necessary protection of the prisoners, to whom the records relate, will be preserved.

16                  The issue is an important one, the applicants submit, for the purpose of the presentation of their case, because the applicants are concerned to say that they are being kept in inappropriate conditions.  By inappropriate I mean in the company of persons who are convicted persons.  There is no remand section in the prison as such, and accordingly the applicants, who at this stage have only been found eligible for extradition and were arrested under provisional arrest warrants, have to be kept in prisons with convicted persons.

17                  I consider it important in the administration of justice that the applicants have the opportunity to present the arguments they wish to make on the two subject matters to which I have referred with such information as may be available to them.  In this area it is necessary, in order to get what I will call loosely the best evidence or evidence which may be admissible, to have these documents produced.  They can then be examined by counsel for the applicants who may or may not wish to ask questions of Mr Kelly.  If that stage were to be reached, I would require such questions to be asked and answered in camera, in closed confidential session, and to have any particular prisoners referred to not by name but by numeric or alphabetic designation. 

18                  What I have undertaken is the balancing act which the authorities require me to carry out.  I rule that, in the circumstances the doctrine of public interest immunity, which as a matter of principle applies in this area, should not and does not result in a conclusion that the documents should not be produced.

19                  Overall, having regard to the protections which I would propose to put in place, to which I have already referred, I am not satisfied that the production of the documents in the limited circumstances to which I have referred, would be injurious to the public interest or inimical to the obligation of the Commissioner to provide for the safe custody and welfare of prisoners in Port Phillip Prison, and I so rule.

Associate:

Dated:              30 March 2000