THE STATE OF WESTERN AUSTRALIA -v- DUFALL [2024] WADC 55

[2024] WADC 55 [2024] WADC 55 (MW) Page 1 JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA IN CRIMINAL LOCATION : PERTH CITATION : THE STATE OF WESTERN AUSTRALIA -v- DUFALL [2024] WADC 55 CORAM : BLACK DCJ HEARD : 25 JUNE 2024 DELIVERED : 25 JUNE 2024 PUBLISHED : 2 JULY 2026 FILE NO/S : IND GER 122 of 2022 BETWEEN : THE STATE OF WESTERN AUSTRALIA AND KYLE WAYNE LINDSAY DUFALL Catchwords: Claim for public interest immunity (PII) - Ongoing police investigation - Application of PII to affidavit filed pursuant to court orders Legislation: Criminal Procedure Act 2004 (WA) Result: Application for public interest immunity allowed -- 1 of 10 -- [2024] WADC 55 [2024] WADC 55 (MW) Page 2 Confidential affidavit to be sealed by the court and not to be released to any party to these proceedings Representation: Counsel: The State of Western Australia : No appearance Accused : In person Third Party : Ms P Femia Solicitors: The State of Western Australia : State Director of Public Prosecutions Accused : Not applicable Third Party : State Solicitors Office Case(s) referred to in decision(s): Alister v The Queen (1983) 154 CLR 404 Assistant Commissioner Condon v Pty Ltd [2013] HCA 7; (2013) 252 CLR 38 Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667; (1994) 75 A Crim R 8 Beneficial Finance Corporation Ltd v Commissioner of Australian Federal Police (1991) 52 A Crim R 423 Brennan v State of New South Wales [2006] NSWSC 167 Church of Scientology Inc v Woodward [1982] HCA 78; (1982) 154 CLR 25 Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4; (2008) 234 CLR 532 HT v The Queen [2019] HCA 40; (2019) 278 A Crim R 133 Marinovich v Director of Public Prosecutions (1987) 14 ALD 315 Roberts-Smith v Fairfax Media Publications Pty Ltd (No 14) [2021] FCA 552 Ryan v State of Victoria [2015] VSCA 353 Sankey v Whitlam (1978) 142 CLR 1 State of Victoria v Brazel [2008] VSCA 37; (2008) 181 A Crim R 562 The State of Western Australia v Christie [2005] WASC 214; (2005) 30 WAR 514 Young v Quin (1985) 4 FCR 483 -- 2 of 10 -- [2024] WADC 55 BLACK DCJ [2024] WADC 55 (MW) Page 3 BLACK DCJ: Introduction 1 The Commissioner of Police (WA) (the Commissioner) has applied for orders that a confidential affidavit of Blake Ashurst sworn 20 May 2024 (the Closed Affidavit) is subject to public interest immunity (PII) and accordingly should not be disclosed to the accused in these proceedings. Orders are further sought that the Closed Affidavit be returned to the Commissioner. 2 On 13 June 2024 the court heard argument from counsel for the Commissioner and from the accused. On that day the court provided its brief oral decision in this application and indicated that comprehensive reasons would follow. 3 These are the reasons for the court's decision. Background to application 4 The accused is charged on indictment in relation to allegations involving the alleged possession and production of child exploitation materials (CEM). 5 The accused is self-represented and is currently a remand prisoner at Casuarina Prison. 6 As a consequence of the accused being self-represented and having regard to the court's obligation to ensure that the accused was able to prepare for trial, various orders were made by the court allowing the accused limited and controlled access to materials disclosed to him in connection with this matter in an electronic form. 7 Two sets of case management orders were made pursuant to s 98 and s 137 of the Criminal Procedure Act 2004 (WA) which were last amended on 1 March 2024. These orders included allowing the accused restricted and controlled access to a computer at Casuarina Prison to enable him to view the prosecution disclosure with appropriate redactions to be made prior to disclosure by the State. Her Honour's orders specifically stated that the materials to be provided to the accused by the State were not to include 'materials that depict child exploitation material in an unredacted form'. 8 These Case Management Orders were set aside by the court on 15 May 2024. -- 3 of 10 -- [2024] WADC 55 BLACK DCJ [2024] WADC 55 (MW) Page 4 9 On 10 and 13 May 2024, police from the Western Australia Serious Offender Management Squad attended Casuarina Prison in response to information that the accused had allegedly copied and distributed CEM within Casuarina Prison and they seized relevant evidentiary material. 10 On 15 May 2024, the court made orders requiring Western Australia Police to provide an affidavit to the court regarding what had been seized by them on 10 and 13 May 2024. The sole purpose of seeking this material was to enable the court to determine what further case management orders were required to enable the accused to prepare for his criminal trial. 11 On 20 May 2024 and solely in response to the court's order, Western Australia Police filed a closed affidavit along with an open affidavit, the latter of which was provided to the accused and to the State prosecutor. 12 On 28 May 2024, Western Australia Police filed an application claiming PII in respect of the Closed Affidavit. PII General principles 13 Public Interest Immunity is the name given to a body of substantive and procedural rules whereby information that is otherwise relevant is withheld on the ground that the public interest in disclosure is outweighed by a competing public interest in its suppression or non-disclosure.1 14 Where a PII claim is made, the court must consider two conflicting aspects of the public interest: (a) whether harm would be done by the production of the material; and (b) whether the administration of justice would be frustrated or impaired if the material is withheld.2 15 The court is then to decide which of those aspects predominated in the particular case that was before the court to decide. 1 Brennan v State of New South Wales [2006] NSWSC 167 [41]. 2 Sankey v Whitlam (1978) 142 CLR 1, 38 - 39; Alister v The Queen (1983) 154 CLR 404, 412; Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667; (1994) 75 A Crim R 8, 15; Roberts-Smith v Fairfax Media Publications Pty Ltd (No 14) [2021] FCA 552, [11]. -- 4 of 10 -- [2024] WADC 55 BLACK DCJ [2024] WADC 55 (MW) Page 5 16 This balancing exercise will only arise when it appears that damage would be done to the public interest by producing the material, and where there is a competing public interest in or likely to be in material which contains relevant evidence that ordinarily should be produced. The court can then consider the nature of the damage which the nation or the public interest would be likely to suffer, and the evidentiary value and importance of the documents in the particular litigation.3 17 Which public interest will predominate in the particular case must be determined by reference to the circumstances of the case.4 18 The court retains a broad discretion to carry out a private inspection of the documents once their relevance has been established. There should be something in the circumstances of the case which excites the attention of the court to the view that the process of determining the challenge to the immunity claim will be aided by inspection. There may be cases where the party disputing the claim for PII is unable to displace the prima facie effect of the materials in support of the claim and the court may consider that the process of determining the challenge to the immunity claim will not be aided by inspection. 19 Therefore, while it is incumbent upon the party claiming PII to establish some evidentiary basis for that claim, the party challenging the PII claim also bears an onus to adduce evidence supporting its objection that the claim is unfounded or mistaken.5 20 A PII claim must be articulated with rigour and precision and be supported by evidence demonstrating the currency and sensitivity of the information, so as to constitute a compelling case for maintaining secrecy.6 21 The court should accord weight to an assertion by an authorised representative of government that the public interest would be at risk in the event of disclosure of the material subject to the PII claim.7 22 If the claim of public interest immunity is successful, the information need not be produced, cannot be adduced in evidence and the substantive proceedings continue, in effect, without regard to the 3 Alister v The Queen (1983) 154 CLR 404, 412 4 Attorney-General (NSW) v Stuart (15). 5 CTC Resources NL v Australian Stock Exchange Ltd (59). 6 State of Victoria v Brazel [2008] VSCA 37; (2008) 181 A Crim R 562, 584 [68] 7 Ryan v State of Victoria [2015] VSCA 353 [57]. -- 5 of 10 -- [2024] WADC 55 BLACK DCJ [2024] WADC 55 (MW) Page 6 existence of the information over which public interest immunity has been successfully asserted.8 Police investigations 23 The public interest in maintaining the effectiveness of the police force, and other such agencies, has been recognised as one of importance.9 24 The courts have recognised that there are particular categories of information likely to prejudice police investigations if they are publicly disclosed and that those categories and may alter from time to time.10 25 There is a public interest in protecting material reflecting the workings or operations of the police, who are responsible for the governmental function of the maintenance of social peace and order.11 26 There is a well-established principle of public interest immunity that material should not be released when the material may harm or prejudice an ongoing police investigation.12 27 PII may also justify the refusal to produce material which might hinder or affect proper policing.13 28 Courts have also consistently recognised the protection of sensitive police methodologies, capabilities, policies and procedures to ensure the ongoing supply of relevant information, as a well-established category of public interest immunity. This is to ensure that crime can be effectively investigated and prosecuted.14 29 As observed by his Honour Chief Judge Hunt in Attorney-General (NSW) v Stuart:15 As another part of that broader public interest, it is essential that nothing used by police in the pursuit of criminals should be disclosed which may 8 Church of Scientology Inc v Woodward [1982] HCA 78; (1982) 154 CLR 25, 61; Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4; (2008) 234 CLR 532, [24]; Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38, [148]; HT v The Queen [2019] HCA 40; (2019) 278 A Crim R 133, [29], [32] and [71] - [72]. 9 The State of Western Australia v Christie [2005] WASC 214; (2005) 30 WAR 514, 522 [41]. 10 Roberts-Smith v Fairfax Media Publications Pty Limited (No 14) [17] 11 Ryan v State of Victoria [105]. 12 The State of Western Australia v Christie [41]. 13 Young v Quin (1985) 4 FCR 483, Marinovich v Director of Public Prosecutions (1987) 14 ALD 315, 317; Beneficial Finance Corporation Ltd v Commissioner of Australian Federal Police (1991) 52 A Crim R 423; Attorney-General (NSW) v Stuart (680) - (681), 690E. 14 Roberts-Smith v Fairfax Media Publications Pty Limited (No 14). 15 Attorney-General (NSW) v Stuart (675). -- 6 of 10 -- [2024] WADC 55 BLACK DCJ [2024] WADC 55 (MW) Page 7 give any useful information concerning continuing inquiries to those who organise criminal activities … or which may or impeded or frustrate the police in that pursuit: … or which may reveal matters to the prejudice of future police activities. 30 The court has been advised in open court that the accused is the subject of an ongoing Western Australia Police investigation relation to allegations arising from the possible dissemination of CEM disclosed to him in the present matter within Casuarina Prison. 31 The Commissioner has filed written submissions and orally submitted that PII should justify the refusal to disclose to the accused the contents of the Closed Affidavit that contains sensitive information relating to the police investigation into the accused in the manner articulated above. The court has been told that this information, if more broadly known, has the real potential to compromise the ongoing current investigation. The accused's arguments 32 The accused does not oppose the Commissioner's claim for PII generally however submits that the claim should not apply to, what was described by him as, 'the list of items seized as part of the investigation'. This reference to such a list arose from the contents of the open affidavit. 33 The accused submitted that under s 150 of the Criminal Investigation Act 2006 (CIA) a person is entitled to be provided with a copy of things seized by police in the exercise of its seizure powers under that act. He submitted that it flowed from this that a person who has things seized from them is entitled to know what has been seized notwithstanding that it relates to an ongoing investigation. 34 In response, counsel for the Commissioner observed that s 150 of the CIA related to an application from 'the person who had custody or control of the thing before it was seized'. As the police seized the materials from the prison authorities and not the accused, this section had no application here. 35 I accept the Commissioner's argument in this regard as it properly applies the terms of the provision and accordingly this section has no application in the circumstances of this case. 36 The accused further asserted that given PII applied, the affidavit should not have been tendered to the court. He submitted that if the affidavit was the subject of a valid claim for PII then it would not be -- 7 of 10 -- [2024] WADC 55 BLACK DCJ [2024] WADC 55 (MW) Page 8 appropriate for the court to have regard to its contents. He submitted that this was because if it was subject to PII then it would not be appropriate that it be adduced in evidence or that the court have regard to it. To do so would deny him procedural fairness. The accused relied on the decision of the High Court in HT v The Queen16 in support of this submission. 37 As counsel for the Commissioner pointed out, this decision related to the non disclosure of materials relating to an accused who had provided assistance to the authorities that was highly relevant to the determination of his sentence. This decision, if anything, detracts from the argument that the accused sought to make in reliance upon it. Assessing the public interest: application of principles to the circumstances 38 There is a need in this instance to balance the public interest in maintaining confidentiality on an affidavit provided to the court in relation to an ongoing and separate police investigation. 39 The Closed Affidavit: (a) was prepared on 20 May 2024 during the very early stages of investigations which are continuing; (b) came into existence solely to comply orders of the District Court made on 15 May 2024; (c) was prepared specifically to inform the District Court of the Western Australia Police Force's investigation status with respect to serious alleged criminal conduct given that seizure of evidentiary material during that investigation directly impacted upon the ability of Corrective Services to comply with case management orders previously made by the court. 40 The only relevance of the closed affidavit is to assist the court in determining how the accused may prepare for his criminal trial and what case management orders are required. 41 There is no unfair advantage in allowing the PII claim given that the orders to be made will prevent the disclosure of the confidential affidavit to the State Director of Public Prosecutions and to the accused. 16 HT v The Queen [32]. -- 8 of 10 -- [2024] WADC 55 BLACK DCJ [2024] WADC 55 (MW) Page 9 42 The public interest in support of allowing the PII claim and avoiding the real risk of impeding a serious criminal investigation significantly outweighs any public interest in allowing the accused to know details of the investigation at this time or to be given a list relating to what was seized and details surrounding that seizure. 43 The accused is aware of the devices and disclosure material he had in his possession in custody at the time of the seizure and is therefore able to determine what he no longer has access to. 44 Any disclosure of the Closed Affidavit has the potential to seriously compromise the integrity of the current investigation. It would have the capacity to undermine the investigation process and to frustrate the ability of the investigators to carry out their tasks. 45 The investigation involves extremely serious allegations and the ability for the Western Australia Police to perform its function and investigate offences such as this, particularly in a prison context, is dependent to a large extent on its capability to gather and assess evidence and intelligence and to apply safeguards to protect that material during the entire investigation process. 46 Disclosure of the content of the Closed Affidavit to the accused to provide him with an itemised list of seized material already for some time in his possession or made available for him to use has, at best, a marginal public interest and is not such as to outweigh the public interest in non-disclosure. 47 The making of this order does not prejudice the accused's prospect of a fair trial. Orders 48 In my view it is necessary to vary the orders sought by the Commissioner to appropriately reflect the fact that the court has received and had regard to the confidential affidavit and to ensure that the prosecuting authority is not advantaged unnecessarily or unfairly. 49 Accordingly, the orders of the court are as follows: 1. The claim for PII in relation to the Closed Affidavit is upheld; 2. The Closed Affidavit be held in a secure location at the Perth District Court; -- 9 of 10 -- [2024] WADC 55 BLACK DCJ [2024] WADC 55 (MW) Page 10 3. The Closed Affidavit is not to be provided to the Office of the Director of Public Prosecutions nor to the accused; 4. There be liberty to apply. I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia. MS Associate to Judge Black 25 JUNE 2024 -- 10 of 10 --