Public Interest Immunity and Subpoenas

Question 1

What does Public Interest Immunity refer to?

Answer 1

“A body of rules whereby information although relevant to an issue in legal or other proceedings maybe protected from examination by the parties”

Question 2

What does Section 130 of the Evidence Act - Exclusion of evidence of matters of the state - empower the court to do?

Answer 2

It empowers the court to prevent the admission into evidence of information or documentation which relates to ‘matters of state’ where the public interest in admitting it into evidence is outweighed by the public interest in preserving its confidentiality or secrecy.

Question 3

What sorts of issues would make us consider Public Interest Immunity?

Answer 3

• Concerns re matters of national security
• Concerns re sensitive police intelligence
• Discloses the identities of police informants/sources
• Discloses the identity of a UC operative
• Discloses location of covert ops / surveillance
• Reveals police methodologies/technology
• Compromises or jeopardises ongoing police investigations or operations
• Discloses the identity and whereabouts of a witness in danger

Question 4

Specify four criteria of when you must accept a subpoena?

Answer 4

• It bears the seal of the court that issued it.
• it is served upon you at least 5 days before the date specified on the subpoena.
• It is accompanied by reasonable ‘conduct money’
• You will need to produce the documents to the court.

Question 5

What are the 10 criteria for making a PII claim under cross examination?

Answer 5

• Do not get involved in objections or arguments.
• Remain courteous, confident and focused.
• If you are asked why it may be a PII; do not answer.
• Ideally you would of briefed the prosecutor.
• Give the prosecutor opportunity to object.
• if the prosecutor has not object do the following;
• Indicate to the court the answer may be Pii.
• This should prompt the prosecutor.
• The prosecutor should outline the basis for the Pii claim.
• The court will then rule either in favour or against the prosecution re Pii

Question 6

If a Pii claim fails what can you do?

Answer 6

• (least desirable) Give the evidence.
• It is open for the prosecutor to seek adjournment re Pii.
• (preferred course) prosecutor may seek a stay of the order to have the Pii issue dealt with at Supreme court

Question 7

What are the 3 types of subpoenas?

Answer 7

• subpoena to produce evidence
• subpoena to give evidence
• subpoena to produce and give evidence

Question 8

How do you respond to a Subpoena?

Answer 8

1) Identify which items fall within that schedule.
2) (if no legal objection) Comply and produce documents to RELEVANT COURT OF ISSUE.

(Unless it is a civil matter with NSWP as defendant; reply to subpoena unit)

OR

3) Raise an objection; as per the criteria of Public interest immunity or Legitimate Forensic Purpose. And submit report outlining why to subpoena unit.

OR

4) Serve part of the material and object to the rest.

Question 9

Objections can fall under two categories, what are they?

Answer 9

• Public interest immunity

- Legitimate forensic purpose (Can include oppressive subpoenas)